Case Detail

CAMP 258/2020

[2022] HKCA 164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 258 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1782 OF 2018)

________________________

BETWEEN
	Mohsin Mohammed	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Au JA in Court

Date of Written Submission: 24 September 2021

Date of Judgment: 11 February 2022

________________________

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 Au JA) handed down on 23 August 2021 ([2021] HKCA 1200). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 13 May 2020 ([2020] HKCFI 780) refusing to grant extension of time for the applicant to seek 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 10 September 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 24 September 2021. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and will do so accordingly.

3. The applicant is a national of Bangladesh. He entered Hong Kong illegally on 14 May 2014 and was arrested by the police on the same day. He raised his non-refoulement claim on 16 May 2014. His claim was made on the basis that he would be harmed or killed by the people of Awami League as he was a member of Jamaat-e-Islami, the rival party of Awami League.

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 26 days. It was refused by the judge on 17 December 2020[1].

5. The applicant renewed his application to the Court of Appeal on 28 December 2020. The application was dismissed by the Court of Appeal on 23 August 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6. In the Notice of Motion filed on 10 September 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.”

7. His written submissions may be summarized as follows:

(1) high standards of fairness are required in the determination of a torture claim on the part of the decision maker; and
(2) the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

8. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) 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.

9. The applicant’s written submissions were dealt with by the Court of Appeal in the judgment dated 23 August 2021. The grounds stated in his Notice of Motion were not raised in the leave application before the Court of First Instance or in his previous application before the Court of Appeal. It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

10. In any event, these new grounds are just bare assertions without particulars and evidence in support. In the present application, the applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his application for extension of time to appeal. Besides, he has not identified 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).

11. For the above reasons, we dismiss the Notice of Motion filed on 10 September 2021 and refuse to grant leave to appeal to the Court of Final Appeal.

(Susan Kwan)
Vice President

(Thomas Au)
Justice of Appeal

The Applicant, acting in person

[1] [2020] HKCFI 3041

CAMP 258/2020

[2021] HKCA 1200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 258 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1782 OF 2018)

________________________

BETWEEN
	Mohsin Mohammed	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Au JA in Court

Date of Written Submission: 22 February 2021

Date of Judgment: 23 August 2021

________________________

J U D G M E N T

________________________

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

1. On 13 May 2020, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to apply for leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2. On 22 June 2020, the applicant filed a summons for leave to appeal out of time against that decision, as the 14-day period to file his appeal ended on 27 May 2020. The application was dismissed by the judge on 17 December 2020[2].

3. On 28 December 2020, the applicant filed a renewed application with the Court of Appeal for leave to appeal out of time against the decision of the judge dated 13 May 2020.

4. The applicant is a national of Bangladesh. He is 40 years old. He entered Hong Kong illegally on 14 May 2014 and was arrested by the police on the same day. He raised his non-refoulement claim on 16 May 2014. His claim was made on the basis that he would be harmed or killed by the people of Awami League (“AL”) as he was a member of Jamaat-e-Islami (“JEI”), the rival party of AL.

The Director’s decisions

5. By a Notice of Decision dated 15 April 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

6. By a Notice of Further Decision dated 8 March 2017, the Director rejected the applicant’s claim on all applicable grounds including 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

7. The applicant appealed against the Director’s decisions to the Board. He attended the hearing before the Board on 13 April 2017. The Board considered the applicant has not established that he would face a real risk of harm if he returns to the Comilla District of Bangladesh. The Board further assessed that even if there were incidents and threats of violence against the applicant and his brothers, they were the result of local rivalry between members of the JEI and the AL in the Comilla District rather than a countrywide campaign against all JEI members as the applicant was not subject to violence or threats of violence while staying in Borura, Chittagong and Dhaka and he would be able to remove himself from that threat by internal relocation within Bangladesh. The Board also held that the applicant’s claim regarding two false complaints made against him is not credible as the police did not appear to have made any effort to find him. Therefore, the appeal was dismissed by the Board on 1 June 2017.

The intended judicial review

8. The applicant filed a Form 86 and an affirmation on 30 August 2018 for leave to apply for judicial review against the decision of the Board. He did not provide any particular grounds for his intended challenge.

The judge’s decision

9. The applicant attended the hearing before DHCJ K W Lung on 13 December 2019. At the hearing, the applicant confirmed that he had had a fair interview with the immigration officer and a fair hearing before the Board. He stated that he had no comment on the Board’s findings.

10. The judge held that the applicant failed to show he has any reasonable prospect of success in the intended judicial review. Therefore, he refused to grant extension of time for the applicant to apply for leave to bring judicial review and dismissed the leave application on 13 May 2020.

Grounds of intended appeal

11. The applicant stated his grounds of appeal in his written submissions which may be summarized as follows[7]:

(1) high standards of fairness are required in the determination of a torture claim on the part of the decision maker;
(2) the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

12. 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.

13. 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 13 May 2020. The applicant took out a summons at the court below on 22 June 2020. He was late by 26 days.

14. The applicant explained in his supporting affirmation that he did not receive the judgment sent to him by post and he only obtained it after searching the court file. However, this explanation is inconsistent with what he had stated in his previous application made to the court below. He stated in his previous affirmation that he was late because he was not aware of the rule of the court. He also submitted at the hearing below he received the order late because he was living at a different address.

15. In these circumstances, the applicant’s explanation for his delay cannot be considered as credible or justifiable. As the delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

16. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17. In the present application, the applicant’s grounds are just bare assertions without particulars or evidence in support. In particular, he has failed to show that the judge was wrong in refusing to grant extension of time for him to bring judicial review. He also failed to adduce any evidence to refute the Board’s findings.

18. For the above reasons, there is no prospect of success in his intended appeal. We therefore decline to exercise our discretion to extend time to appeal against the judge’s decision of 13 May 2020 and dismiss the summons filed on 28 December 2020.

(Susan Kwan)
Vice President

(Thomas Au)
Justice of Appeal

The Applicant, acting in person

[1] [2020] HKCFI 780

[2] [2020] HKCFI 3041

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

[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 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.

[6] 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.

[7] In the previous application for leave to appeal out of time, the applicant has not put forward any grounds of appeal.

MOHSIN MOHAMMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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