BEPARY MOHAMMAD JAHIRUL v. TORTURE CLAIMS APPEAL BOARD

CAMP 43/2022

[2022] HKCA 1008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 43 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 235 OF 2017)

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JUDGMENT

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

1.  On 7 February 2022, the Applicant took out a summons seeking leave to appeal against the order of Deputy High Court Judge Anthony To dated 31 January 2022 refusing to grant an extension of time to the Applicant to appeal against the order of Deputy High Court Judge Woodcock (“the Judge”) dated on 4 August 2017 (“the Order”), whereby the Judge refused to grant the Applicant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Adjudicator of the Torture Claims Appeal Board (“the Board”) dated 18 May 2017 dismissing the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 6 April 2016 and 27 March 2017.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral 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 illegally from Mainland China on 15 December 2013.  He was arrested on the day he arrived in Hong Kong, and lodged a non-refoulement claim on the same day, alleging that if he was refouled, he would be harmed or killed by the Awami League and the Bangladesh police because he supported a rival political party.  Details of the Applicant’s claim have been summarised by the Judge at §§1-10 of the CALL-1 Form.

5.  By a Notice of Decision and Notice of Further Decision dated 6 April 2016 and 27 March 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

6.  On 18 May 2017, the Board dismissed the Applicant’s appeal and confirmed the Director’s decisions (“the Board’s Decision”).  The Board accepted that the Applicant had suffered some injuries in an incident in 2003 which might have caused him to fear further ill-treatment, but found that the risk of him facing a genuine and substantial risk of harm if refouled was low.  In any event, the Board was satisfied that State protection was available and internal relocation was also a viable and reasonable option open to him.  Finally, the Board found that the Applicant's fear of ill-treatment did not fall within the definition of persecution.

THE JUDGE’S DECISION

7.  On 25 May 2017, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

8.  On 4 August 2017, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“19. I have considered with rigorous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. She analysed the material, claims and evidence carefully, logically and with caution. She also applied the correct standard of proof. The applicant’s complaints against her and the procedure undertaken are not made out. My findings also applied to the Director’s decision.

20. I found no substance in the grounds of this application. The applicant had nothing to add or supplement during the oral hearing except to say his problems at home have not been resolved, it was still dangerous and his life would be at risk. In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated. For example, in the hearing before the adjudicator there is no record of any complaint from the applicant about his previous legal representation and his confusion. An interpreter was provided and at the applicant’s disposal; he confirmed he understood the procedure at the hearing. The adjudicator in her decision does refer to COI material she assessed and examined. The applicant’s criticism here is, as it is with most, but a bare assertion.

21. I do not find any grounds that show there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

22. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refused leave for judicial review.”

9.  On 31 January 2022, Deputy High Court Judge Anthony To refused the Applicant’s application by a summons dated 5 October 2021 for an extension of time to appeal against the Order.  Deputy High Court Judge To considered the Applicant’s delay of more than 4 years in seeking to lodge his appeal to be very serious.  Deputy High Court Judge To did not accept the Applicant’s explanation that he did not receive the Order “within reasonable time to enable him to appeal within time”, and found that the Applicant chose to move from place to place to avoid the consequence of the Order.  More importantly, Deputy High Court Judge To considered that the Applicant’s intended appeal had no prospect of success (see [2022] HKCFI 321 at §10-16).

THIS APPLICATION

10.  By a summons taken out on 7 February 2022, the Applicant applied for leave to appeal against the decision of Deputy High Court Judge To dated 31 January 2022.  In his supporting affirmation filed on the same date, the Applicant wrote that he was changing his place of residence continuously in order to avoid the capture of police because he had lost his legality to reside.

11.  In his 6-page written submissions dated 21 February 2022, the Applicant argued that Deputy High Court Judge To failed to consider the clear substantive merits of his underlying judicial review application and of his appeal (to the Board), and failed to consider that the Judge’s decision was in error.  The Applicant also challenged the Adjudicator’s assessment of the relevant country of origin information, including the issue of State protection, and contended that there was procedural impropriety/unfairness in the appeal process and irrationality in the Board’s Decision.

DISCUSSION

12.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

13.  In deciding whether to extend time to appeal, this 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.

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

15.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

16.  The applicant’s delay of over 4 years to pursue his intended appeal is very serious.  There is plainly no valid justification for the delay.

17.  In relation to the Applicant’s challenge against the Board’s Decision, it is well established that assessment of the 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 are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such ground has been made out by the Applicant.

18.  Further, the Applicant has failed to point to or substantiate any alleged error of the Judge in her decision dated 4 August 2017, and has failed to raise any viable ground of appeal against the Judge’s decision in his summons or affirmation or written submissions.

19.  There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

20.  The application for extension of time to appeal is refused, and the Applicant’s summons of 7 February 2022 is dismissed.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.