M. A. JALIL v. TORTURE CLAIMS APPEAL BOARD

CAMP 136/2020

[2021] HKCA 563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 136 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1223 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 23 December 2019, Deputy High Court Judge Bruno Chan 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 9 January 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 6 January 2020.  The application was heard by Deputy High Court Judge Bruno Chan on 11 June 2020 and dismissed on 28 July 2020[2].

3.  On 18 August 2020, the applicant took out a summons for leave to appeal against the judge’s decision given on 28 July 2020 but in effect it is a renewed application for extension of time to appeal against the judge’s decision of 23 December 2019.

4.  The applicant is a national of Bangladesh.  He is 40 years old.  He last arrived in Hong Kong on 7 June 2006 as a visitor.  He subsequently overstayed was arrested by police on 28 September 2007.  He raised a torture claim on 3 October 2007 on the basis that if he returns to Bangladesh he will be harmed or killed by certain supporters of Awami League (“AL”) over some monetary dispute.

The Director’s decision

5.   His torture claim was treated as a non-refoulement claim under the unified screening mechanism.  By a Notice of Decision dated 26 January 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including BOR 2 risk[3], BOR 3 risk[4], torture risk[5] and persecution risk[6]. 

The Board’s decision

6.   The Applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 23 April 2018.  The Board did not accept the applicant’s claim as it found the applicant’s case implausible and there is lack of coherence.  The Board further found it unlikely that the applicant would be of any interest to the AL people after the lapse of such long period of time, as it was shown that the applicant had experienced no problem after he moved to some other places in Bangladesh before he came to Hong Kong.  The Board also considered that he will not face a real risk of any form of harm upon his return to Bangladesh as he can relocate to other area in Bangladesh safely and reasonably. Thus, the Board dismissed the applicant’s appeal on 15 June 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 28 June 2018 to seek leave to apply for judicial review against the decision the Board.  He put forward the following grounds for his intended challenge:

(1)  misdirection in the law in holding that the applicant had to have experienced torture in the past in order to establish substantial grounds for believing that there will be a risk of torture in the future;

(2)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into Country of Origin Information (“COI”) and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to take into account or put proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether there is a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirecting himself as to the extended meaning of state protection;

(6)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or incorrect or inaccurate facts;

(7)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(8)  procedural impropriety/unfairness in applying the incorrect standard of proof in his decision; and

(9)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

The judge’s decision

8.  A hearing was conducted before DHCJ Bruno Chan on 12 September 2019.  The judge found that the applicant’s complaint for which he has provided some elaboration is the one stated in his supporting affirmation that concerns the lateness in providing him with the hearing bundle before the Board hearing.  The judge considered that there is nothing amiss arising from the hearing bundle since most of the documents should be well familiar to the applicant as they had been made available to him earlier when he still had legal representation and he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal at the hearing before the Board. 

9.  For the rest of the applicant’s grounds, it was held that they are just broad and vague assertions without any particulars or specifics or elaborations as to how they apply or are relevant to his case and it has not been shown how the Board had erred in the decision.  The judge found that the applicant’s complaint of misdirection in law by the Board on torture is wholly misplaced and any claim of torture simply cannot be substantiated as his dispute with the AL supporters was one of personal monetary matter with no official involvement even according to his own case. 

10.  For the above reasons, the judge was not satisfied there is any prospect of success in the intended judicial review and refused the leave application on 23 December 2019.

Grounds of intended appeal

11.  The applicant stated the following grounds of appeal in his affirmation:

(1) the judge was wrong in holding that there was no state acquiescence or involvement;

(2)the judge failed to provide detailed reason in support of his decision.

12.  As the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 2 December 2020 to lodge his written submissions within the prescribed time, he is deemed to be relying only on the representations made in his summons and affirmation.

Analysis and disposition

13.  In considering whether to extend time for appealing 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.

14.  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 was made on 23 December 2019.  The applicant took out a summons at the court below on 9 January 2020.  He was late by about three days.  

15.  The applicant explained in his affirmation filed with the court below that he received the decision late as the mail had to go through his landlord’s post box and the landlord was late in passing the mail to him.  He then had to seek help from his friends with the appeal.

16.  In view of the short delay in the present case, and considering the intervening Christmas and new year holidays, his explanation is acceptable.

17.  The court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[7].

18.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

19.  Ground (1) is just bare assertion not supported by evidence.  The alleged problem arose from a private monetary dispute.  There is no evidence to show that the AL or the Bangladeshi government was involved in the applicant’s conflict with the local AL people.  The fact that the applicant was able to leave Bangladesh twice using his own passport through proper immigration channel indicated that he was not adversely targeted by the state of Bangladesh.  The applicant also failed to adduce any evidence to refute the finding of the Board.

20.  Ground (2) is wholly without basis as the judge did give detailed explanation for rejecting the leave application in paragraphs 12 to 18 of the decision given on 23 December 2019.

21.  For the above reasons, the applicant does not have any prospect of success in the intended appeal.  We therefore refuse to extend time to appeal and dismiss the summons filed on 18 August 2020.

[1] [2019] HKCFI 2590

[2] [2020] HKCFI 1607

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

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

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

[6] 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 and its 1967 Protocol.

[7] Re Gurung Min Bahadur [2018] HKCA 226 §10