MOHABUB ZAMAN MITHU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 542/2022, [2023] HKCA 514

On An Intended Appeal From [2022] HKCFI 2930 &

[2022] HKCFI 3296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 542 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2491 OF 2020)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 20 December 2022, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 22 September 2022 refusing to grant leave to apply for judicial review (“the Order”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 18 February 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 September 2017.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Bangladesh. He entered Hong Kong on 23 December 2004 and was permitted to remain as a visitor until 27 December 2004. On 16 March 2007, he was arrested by the police for theft. On 13 July 2007, he lodged a torture claim[1], which was rejected on 21 November 2013. The Applicant also raised a non-refoulement claim on all applicable grounds other than that of torture risk on 13 November 2013, claiming that, if refouled, he would be harmed or killed by the Muslims, including his father and uncles, as well as the villagers in Narayangonj, because his conversion to Christianity was not acceptable to the Muslims in Bangladesh. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 2930).

5.  By a Notice of Decision dated 15 September 2017, the Director rejected the Applicant’s non-refoulement claim on the remaining applicable grounds: BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 18 February 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§9-11 of the CALL-1 Form, as follows:

“[9] The Board probed into the material aspects of the applicant’s claim [42]-[51]. It also invited the applicant to comment on the country of origin information (‘COI’) which stated that reasonable protection was available. The applicant replied that he could not explain the real practical situation [49]. Having considered all the evidence, the Board found that the applicant was not a witness of truth [52].

[10] In particular, the Board observed that the applicant’s answers at the hearing were vague and lacked details [53]. It also had concerns that the applicant failed to answer the fundamental questions regarding his religion conversion [54]. He was also unable to formulate clearly his fear other than saying that he had lost everything in his life and wished to die [55]. The Board also cast doubt on his alleged conversion [56]. In assessing the evidence as a whole, the Board was not persuaded that the applicant had converted to Christianity. [59]. It also considered that, on the COI, there were few attacks on the Christians [58]. As a result, the Board found that the crux of his claim about his converted religion was unsubstantiated [60].

[11] In passing, the Board expressed concerns over the applicant’s mental health [61]. While the applicant failed to submit any evidence on his mental illness, the Board nevertheless found that the assistances to mental health patients in Bangladesh were in effect [62]-[66].”

7.  On 23 December 2020, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

THE JUDGE’S DECISION

8.  The Judge held an oral hearing of the leave application on 5 September 2022. On 22 September 2022, the Judge gave a decision refusing to grant the Applicant leave to apply for judicial review for the following reasons:

“[15] As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The delay of more than one year and a half is, of course, serious. However, I shall first consider the merits of the applicant’s case.

[16] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

[17] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

…

[19] I have taken note of the Board’s concern of his mental health condition. At the hearing, the applicant produced medical reports on his mental health condition. I have accepted the medical reports for consideration. The updated psychiatric report records that his last medical examination was on 22 September 2020 which says that he was still taking medication regularly. [He was still distressing but had no suicidal or violent tendency].[5] In another psychiatric report dated 25 August 2020, it says that he was a drug abuser, taking ice and cocaine in 2017. Having considered these psychiatric reports, it seems clear that he does not have serious psychiatric problem for the time being. I consider that It is unnecessary for the medical reports to be re-considered by the Board.

[20] The Board had assessed his case and did not accept his evidence on the facts of his case. There is no valid reason to challenge the Board’s Decision.

[21] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”

9.  On 17 November 2022, the Judge refused the Applicant’s application by summons dated 13 October 2022 for an extension of time to appeal against the Order ([2022] HKCFI 3296).

THIS APPLICATION

10.  By a summons taken out on 20 December 2022, the Applicant applied for leave to appeal out of time against the Order. In the summons, the Applicant asked for leave to advance a new sole ground of appeal, namely, that “High Standards of Fairness” are required in determination of a torture claim on the part of the decision-maker.

11.  In his supporting affirmation filed on 20 December 2022, the Applicant stated that the “Decision” had a significant effect on him, and asked to be granted leave to advance a “new sole ground of appeal”. He also stated that the late filing of his appeal was due to “financial problem”.

12.  In his written submissions received by the court on 20 December 2022, the Applicant set out some general principles of law relating to non-refoulement claims, but failed to explain how those principles were relevant or applicable to his case.

13.  In his further written submissions received by the Court on 3 January 2023, the Applicant raised the following grounds in support of his application:

(1)  The Director and the Board failed to apply a high standard of fairness when determining his non-refoulement claim. They failed to take into consideration the fact that his fundamental human rights were involved.

(2)  The Director and the Board erred by not taking into account that it was difficult or impossible for him to provide corroborative documents or evidence in support of his non-refoulement claim.

(3)  The Director and the Board’s decisions to reject his claim were not based on logical reasoning or clear thinking, and it was irrational to reject his claim.

DISCUSSION

14.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

15.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

16.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

17.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

18.  The Applicant has failed to point to or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

19.  There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

20.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 20 December 2022 is dismissed.