MD RIAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 69 /2020

[2020] HKCA 843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 69 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 362 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 28 June 2019, Deputy High Court Judge Josiah Lam (“DHCJ Lam”) refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1].

2.  On 24 June 2020, Deputy High Court Judge Bruno Chan (“DHCJ Chan”) refused to grant leave to the applicant to appeal against the decision of DHCJ Lam out of time as there was a substantial delay of more than 4 months and the applicant failed to show he had any prospect of success in his intended appeal^[2].

3.  On 29 June 2020, the applicant took out a renewed application for leave to appeal out of time to the Court of Appeal.

4.  The applicant is a national of Bangladesh and is 34 years old.  He entered Hong Kong illegally on 13 November 2012.  He was arrested by the police on 19 January 2013.  He raised a non-refoulement claim on 11 March 2014 on the basis that he would be harmed or killed by members and supporters of the Awami League (“AL”) and he also feared he would be arrested by the police in Bangladesh since he had been accused of committing arson.

The Director’s decisions

5.  By a Notice of Decision dated 26 May 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim on torture risk^[3], BOR 3 risk^[4] and persecution risk^[5].  By a Notice of Further Decision dated 26 September 2017, the Director rejected his claim on BOR 2 risk^[6] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim.  

The Board’s decision

6.  The applicant lodged an appeal to the Board against the Director’s decision in rejecting his claim on torture risk, BOR 3 risk and persecution risk.  The Board conducted a hearing on 8 May 2017.   At the hearing, the applicant stated that he used his twin brother’s passport to depart from Bangladesh and his real name is Mohammad Raihan and his brother is Riat.  After considering the applicant’s evidence, the Board found that the applicant’s dispute with his enemies was personal grudge out of his attack against the members of AL.  The Board also considered that internal relocation is a viable option and there was no evidence to suggest that his enemies were able to invoke the apparatus of the state to find the applicant in other areas of Bangladesh.  Therefore, the appeal was dismissed by the Board on 24 August 2017.

7.  It was after the dismissal of the appeal by the Board that the Director issued a Notice of Further Decision dated 26 September 2017 rejecting the claim on BOR 2 risk.  There was no appeal to the Board concerning this decision of the Director.

The first leave application – HCAL 578/2017

8.  On 4 September 2017, the applicant applied for leave to apply for judicial review of the Director’s decision on 26 May 2016 and the Board’s decision on 24 August 2017.  This was HCAL 578/2017.  This application was refused by Campbell-Moffat J on 2 March 2018^[7].  The judge found that the intended application for judicial review has no realistic prospect of success as the Board’s decision was eminently reasonable with no error of law or procedural unfairness.  The applicant did not appeal against this decision.

The second leave application – HCAL 362/2018

9.  On 7 March 2018, the applicant filed a new Form 86 and an affirmation to re-apply for leave for judicial review of the Board’s decision on 24 August 2017 under HCAL 362/2018 on the grounds that the Board failed to maintain high standard of fairness as the applicant did not have sufficient time to prepare for the appeal due to language problem and the lack of legal representation.

The decision of DHCJ Lam in HCAL 362/2018

10.  DHCJ Lam considered that the second leave application was an abuse of process.  He noted that the grounds in the Form 86 in HCAL 362/2018 were different from those in HCAL 578/2017.  However, the ‘new’ grounds could have been included in the previous application and were nothing new.  The applicant failed to provide any good reason to justify why he had not done so.  As the applicant failed to show good reason to justify a repeated application for leave for judicial review, the application was dismissed on 28 June 2019.

11.  On 17 December 2019, the applicant sought an extension of time to appeal against the decision of 28 June 2019.  The application was refused by DHCJ Chan on 24 June 2020.

The grounds of appeal

12.  On 29 June 2020, the applicant filed a summons with the Court of Appeal to renew his application to appeal out of time.  He advanced the following grounds in his supporting affirmation:

(1)  He was unrepresented and did not have access to legal advice.

(2)  There is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.

13.  On 30 July 2020, directions were given by the Registrar of Civil Appeals for the applicant to lodge a submission on or before 18 August 2020.  No submission has been lodged by the applicant to date.

Analysis

14.  In considering whether to extend time for appeal against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order of DHCJ Lam was made on 28 June 2019.  The applicant took out a summons in the court below on 17 December 2019.  He was late for more than 4 months. The delay was substantial. 

16.  The applicant explained that he was in prison at the material time and thus did not know about the decision of DHCJ Lam until November 2019.  As his explanation was not supported by any documentary evidence, we have reservations if this would be a justifiable reason to excuse the delay.

17.  In any event, we do not think the applicant has established any prospect of success on the merits for the intended appeal against the decision of DHCJ Lam.

18.  The applicant has failed to put forward any viable ground to reverse the decision of DHCJ Lam.  Nor did he identify any error of law or procedural unfairness or irrationality of the judge in the decision refusing to grant him leave to apply for judicial review.  DHCJ Lam is plainly right to hold that the second leave application was an abuse of process as the applicant failed to provide any good reason to justify a repeated application for leave for judicial review.

19.  Since the applicant does not have any prospect of success in the intended appeal, we dismiss the summons for extension of time to appeal filed on 29 June 2020.