MD MOJAMMAL alias MD MOJMMAL ALIAS MOJAMMAL v. MRS SYDELLE MULING, ESQ.,TORTURE CLAIMS APPEAL BOARD

CAMP 262 /2020

[2022] HKCA 451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 262 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1279 OF 2018)

________________________

________________________

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 out of time 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 1202). The Court of Appeal refused to grant extension of time for the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan dated 9 June 2020 ([2020] HKCFI 542) refusing to grant leave to apply for judicial review concerning the applicant’s non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 11 October 2021 that the Notice of Motion shall be determined on paper without an oral hearing.  The applicant lodged his written submissions on 25 October 2021.  Having considered his written submissions and the papers, it is considered appropriate to determine this application on paper.

3.  The applicant is a national of Bangladesh.  He arrived in Hong Kong on 28 May 2006 as a visitor and subsequently overstayed.  He was arrested by the police on 18 November 2009.  He raised a torture claim on 20 November 2009 which was rejected by the Director of Immigration (“the Director”) on 14 January 2013.  He then lodged a non-refoulement claim on 11 July 2013.  His claim was made on the basis that he will be harmed or killed by a fellow villager due to a land dispute if he returns to Bangladesh.

4.  He took out a summons for extension of time to appeal against the decision of the judge at the court below on 28 July 2020.  His application was dismissed by the judge on 19 November 2020[1].

5.  The applicant renewed his application to the Court of Appeal on 30 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 11 October 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.  The applicant reiterated his background and cited various provisions of the International Covenant on Civil and Political Rights, the Hong Kong Bills of Rights Ordinance, the Basic Law as well as the United Nation Covenant Against Torture.  In gist, his written submissions may be summarised as follows:

(1)     Any delay was not due to anything the applicant or his legal representative had done or failed to do.

(2)     The leave application involves question of great general and public importance.  The legal issues raised are complex, which have not yet been argued in full and not been adjudicated upon by any court.  The outcome will affect not only the applicant but around 2,000 torture claimants in Hong Kong as well as the practice and procedure by the Immigration Department and the Board.

(3)     High standards of fairness are required in the determination of a torture claim on the part of the decision maker.

(4)     The decision maker is under a duty to act fairly.

Analysis and disposition

8.  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.  Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal. 

9.  Good grounds have to be shown by the applicant for the court to grant an extension of time.  The relevant factors in considering whether 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).

10.  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.

11.  The applicant was late for 3 weeks in filing his Notice of Motion.  He explained that he was living in a subdivided flat with other tenants and needed to wait for the landlord to distribute the letters to him so he has just got the judgment recently.  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]).

12.  Before handing down the judgment, on 16 August 2021 the court had sent a notice of handing down of judgment notifying the applicant the date of handing down and that the judgment would be uploaded to the Judiciary website within the same day of handing down.  The judgment was also sent to the applicant’s address by post on 23 August 2021.  Under these circumstances, the applicant’s explanation for the delay is not justifiable.

13.  In any event, the applicant has not demonstrated that the Court of Appeal was wrong in dismissing his application.  His grounds and submissions are just bare assertions without particulars or evidence in support and there is no elaboration as to how they relate to his intended appeal.  He alleged there are question of great general and public importance and complex legal issues which have not yet been adjudicated by any court but failed to identify the particular questions which are of great general or public importance that 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).

14.  We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 11 October 2021.

CAMP 262/2020

[2021] HKCA 1202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 262 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1279 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 9 June 2020, Deputy High Court Judge Bruno Chan refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2.  On 28 July 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 23 June 2020.  The application was dismissed by the judge on 19 November 2020[2].

3.  On 30 December 2020, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal against the decision of the judge dated 9 June 2020.

4.  The applicant is a national of Bangladesh.  He is 42 years old.  He arrived in Hong Kong on 28 May 2006 as a visitor and subsequently overstayed.  He was arrested by the police on 18 November 2009.  He raised a torture claim on 20 November 2009 which was rejected by the Director of Immigration (“the Director”) on 14 January 2013.  He then lodged a non-refoulement claim on 11 July 2013.  His claim was made on the basis that he will be harmed or killed by a fellow villager due to a land dispute if he returns to Bangladesh.

The Director’s decision

5.  By a Notice of Decision dated 17 October 2017, the Director rejected the applicant’s claim on BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].  The applicant’s claim on torture risk[6] was not reviewed as the applicant’s torture claim had already been rejected by the Director previously.

The Board’s decision

6.  The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 26 February 2018.  The Board found significant inconsistencies in the applicant’s evidence and considered that the applicant is not a witness of truth.  It did not accept that the applicant had experienced any problems or harm in Bangladesh because of any land dispute and rejected the fundamental basis of the applicant’s claim that he would face any form of harm upon his return to Bangladesh.  Therefore, the appeal was dismissed by the Board on 22 June 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 4 July 2018 for leave to apply for judicial review against the decision of the Board.  He put forward the following grounds for his intended challenge:

(1)  the adjudicator misdirected himself on the law by considering that the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there is a risk of torture in the future;

(2)  the adjudicator failed to carry out sufficient research and inquiry into the country of origin information (“COI”) so that the dismissal of the applicant’s case was founded upon an unfair procedure;

(3)  the adjudicator failed to put any weight on the relevant COI, cherry-picked the COI which is of little or no relevance, relied on outdated COI and arrived at an unreasonable decision;

(4)  the adjudicator failed to evaluate whether there exists in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights;

(5)  the adjudicator failed to assess whether state protection exists in Bangladesh under the extended meaning and misdirected himself on the law by erroneously stating what the extended meaning of state protection was;

(6)  the adjudicator took into account irrelevant considerations or considerations that were incorrect or facts not reasonably inferred and failed to take into account facts and inferences that were favourable to the applicant;

(7)  the failure to call for psychological and psychiatric evaluation and reports amounts to procedural impropriety;

(8)  the adjudicator applied the incorrect standard of proof in the decision; and

(9)  the failures of the assigned duty lawyer resulted in a lack of and/or insufficient legal representation for the applicant.

The judge’s decision

8.  The applicant attended the hearing before DHCJ Bruno Chan on 15 November 2019.  The judge considered there is nothing amiss arising from the alleged problems relating to the hearing bundle in the appeal before the Board as most of the documents in the bundle had previously been made available to the applicant when he still had legal representation and he should be well familiar with the documents, also he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal at the oral hearing before the Board.

9.  The judge further held that the rest of the applicant’s grounds are not reasonably arguable as they are just broad and vague assertions without particulars, specifics or elaboration and the applicant failed to identify with sufficient particularity any error of law or procedural unfairness in the proceedings before the Director or the Board or in their decisions.  The judge concluded there is no prospect of success in the intended judicial review and dismissed the leave application on 9 June 2020.

Grounds of intended appeal

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

(1)  The Awami League is the ruling party which kills thousands of people from the opposition.  The applicant is one of those from the opposition but is lucky to flee from Bangladesh to Hong Kong.

(2)  He told his true story to the Director and the Board but they rejected his claim.

Analysis and disposition

11.  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.

12.  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 9 June 2020.  The applicant took out a summons at the court below on 28 July 2020.  He was late by five weeks.

13.  The applicant explained at the hearing at the court below that he failed to lodge his appeal in time as he thought that the court was closed due to the Covid-19 pandemic.  This is not a justifiable reason for the delay as the applicant simply relied on his own mistaken belief without making any effort to check with the court.  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.

14.  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.

15.  In the present application, the applicant’s grounds of appeal are just bare assertions without merits or evidence in support.  In particular, he has failed to show that the judge was wrong in refusing his leave application. He also failed to adduce any evidence to refute the Board’s findings.

16.  For the above reasons, there is no prospect of success in his intended appeal.  We therefore refuse to extend time to appeal against the judge’s decision of 9 June 2020 and dismiss the summons filed on 30 December 2020.