Case Detail

CAMP 136/2020

[2021] HKCA 1290

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)

________________________

BETWEEN
	M. A. Jalil	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Chu JA in Court

Date of Judgment: 10 September 2021

________________________

J U D G M E N T

________________________

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

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chu JA) handed down on 28 April 2021 ([2021] HKCA 563). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 23 December 2019 ([2019] HKCFI 2590) refusing to grant leave to apply for judicial review concerning his non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 1 June 2021 that the applicant should lodge written submissions in support of his Notice of Motion on or before 14 June 2021 and that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction. The applicant did not lodge any written submission as directed. As the time for compliance with the said directions has expired, having considered the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Bangladesh. He last arrived in Hong Kong on 7 June 2006 as a visitor and subsequently overstayed. He was arrested by the 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 over some monetary dispute.

4. He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. His application was late by about three days. It was refused by the judge on 28 July 2020 ([2020] HKCFI 1607).

5. The applicant renewed his application to the Court of Appeal on 18 August 2020. The application was dismissed by the Court of Appeal on 28 April 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6. In the Notice of Motion filed on 31 May 2021, the applicant stated the following as his grounds of appeal:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just reliedon COL [sic] information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefersto ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approachunlikely fairly access the danger of my life and clearly not reasonable.”

Analysis and disposition

7. Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. The Court of Appeal may extend the time for making the application under section 24(5).

8. Good grounds have to be shown by the applicant for the court to grant him an extension of time. The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

9. Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10. The applicant was late for five days in filing his Notice of Motion. He explained in his affirmation that he did not receive the judgment within the time stipulated for appeal. Both the notice of handing down the judgment and the judgment of the Court of Appeal were sent by post in April 2021 to the applicant’s address, which was provided to the court in the notice of change of address for service filed by the applicant on 23 November 2020. They were returned to the court by the post office. It is noted that the applicant’s address stated in his present application is different from the address stated in his notice of change of address for service, but he has not filed another notice of change of address informing the court of his change of address. Therefore, his explanation cannot justify his delay in filing the Notice of Motion. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran[2018] HKCA 439, at §15).

11. In any event, the applicant’s grounds are just bare assertions without particulars, elaboration and evidence in support. He does not have any reasonably arguable basis to show that the Court of Appeal was wrong in dismissing his application. He has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 31 May 2021.

(Susan Kwan)	(Carlye Chu)
Vice President	Justice of Appeal

The Applicant, acting in person

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)

________________________

BETWEEN
	M. A. Jalil	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Chu JA in Court

Date of Judgment: 28 April 2021

________________________

J U D G M E N T

________________________

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.

(Susan Kwan)	(Carlye Chu)
Vice President	Justice of Appeal

The Applicant, acting in person

[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

M. A. JALIL v. TORTURE CLAIMS APPEAL BOARD

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