Case Detail

CACV 437/2021

[2022] HKCA 1508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 437 OF 2021

(ON APPEAL FROM HCAL NO 2198 OF 2018)

________________________

BETWEEN
	Miah Muhammad Shohag	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Barma JA in Court

Date of Judgment: 12 October 2022

________________________

J U D G M E N T

________________________

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

1. This is the applicant’s application by Notice of Motion filed on 17 February 2022 for leave to appeal to the Court of Final Appeal against the against the judgment of the Court of Appeal (Kwan VP and Barma JA) handed down on 7 January 2022 ([2022] HKCA 6). The Court of Appeal rejected the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 3 September 2021 ([2021] HKCFI 2633) refusing to grant extension of time for the applicant 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 17 February 2022 that the applicant shall lodge written submissions on or before 3 March 2022. It was further directed that the present Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. As the court registry has been temporarily closed in the period of general adjournment of the court due to public health reasons, the Registrar of Civil Appeals extended the time for lodging written submissions to 14 days after the resumption of court business. On 20 May 2022, the deadline for lodging written submissions was further extended to 2 June 2022. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

Grounds of appeal

3. In the Notice of Motion filed on 17 February 2022, the applicant stated the following grounds of appeal:

(1)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director of Immigration (“the Director”).
(2)  The judges were wrong as a matter of law for not applying the principle of irrationality to the decision made by the Director in refusing the application for judicial review.
(3)  There is some error in law in the decision. The decision maker just relied on the Country of Origin information (“COI”) and previous facts which favour the rejection of the applicant’s claim.
(4)  The actual situation is different from the COI. The immigration officer and the court ignored the evidence of violence towards minorities, searching for unrealistic silver lining.
(5)  The judge did not apply the law properly and there is procedural unfairness.
(6)  The applicant’s life is in danger in his country. He will be killed or harmed if he returns to his country.

Analysis and disposition

4. 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. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena[2019] HKCA 959 at §1.4).

5. 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.

6. The applicant was late for nearly 2 weeks in filing his Notice of Motion. He explained in his affirmation he was late because he was unaware of the rules regarding the time limit and was unrepresented. These are not good grounds to justify his delay.

7. In any event, the applicant’s grounds in the present application are just bare assertions without particulars or evidence in support. He failed to show that the Court of Appeal was wrong in dismissing his appeal. Besides, 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).

8. For the above reasons, we dismiss the Notice of Motion filed on 17 February 2022.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant (Appellant), acting in person

CACV 437 /2021

[2022] HKCA 6

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 437 OF 2021

(ON APPEAL FROM HCAL NO 2198 OF 2018)

________________________

BETWEEN
	Miah Muhammad Shohag	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP and Barma JA in Court

Date of Written Submission:	28 September 2021
Date of Judgment:	7 January 2022

________________________

J U D G M E N T

________________________

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

1. This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 3 September 2021^{^[1]} (“the Judge’s Decision”) refusing to grant extension of time to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 26 April 2017 concerning his non-refoulement protection claim (“the Board’s Decision”).

2. By a letter dated 14 September 2021, the applicant consented to have his appeal disposed on paper. This is our judgment.

3. The applicant is a 38-year-old national of Bangladesh. He was arrested by the police in Hong Kong for illegally remaining and possessing a suspected false recognizance form on 11 November 2012. On 23 September 2013, he lodged a claim for protection against torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”). His CIDTP claim was taken as a non-refoulement claim and assessed on all applicable grounds upon the commencement of the unified screening mechanism.

4. The applicant’s claim was made on the bases that (1) he would be harmed or killed by some Awami League (“AL”) people belonging to Chakma and Tripura tribes due to their hostility against the applicant’s Bengali tribe and his support of the Bangladesh Nationalist Party (“BNP”); and (2) he feared that he would be arrested and falsely accused of having been involved in a clash by the local police in Bangladesh.

The Director’s Decisions

5. By a Notice of Decision dated 11 March 2016 (“the Director’s First Decision”), the Director rejected the applicant’s non-refoulement claim on the grounds of torture risk^{^[2]}, BOR 3 risk^{^[3]}and persecution risk^{^[4]}.

6. The Director considered that there were no substantial grounds to believe that there would be any real and substantial risk of the applicant being harmed or killed as alleged. The Director found that, out of the three alleged cases that the applicant feared to be falsely accused of, two were withdrawn and one did not involve the applicant. The Director also found that the applicant was not inflicted with any bodily harm in the past and that since his family, who shared the same political affiliation, could live worry free in his home country, there was no substantial ground to believe that his life would be in danger if refouled. Further, the country of origin information (“COI”) indicated that Bengali was the main ethnic group in Bangladesh. The low intensity and frequency of ill-treatment in the past indicated that the future risk of harm upon the applicant’s return to Bangladesh was not likely to materialize. In any event, the level of risk of being harmed or killed was further lowered or negated by the availability of state protection and internal relocation. Thus, the Director rejected his non-refoulement claim on the aforesaid three grounds.

7. Further, in light of the findings in the Director’s First Decision and the applicant’s failure to adduce additional information, the Director rejected the applicant’s non-refoulement claim on BOR 2 risk^{^[5]} in the Notice of Further Decision dated 14 March 2017 (“the Director’s Second Decision”).

8. In this judgment, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

The Board’s Decision

9. The hearing of the appeal against the Director’s Decisions was conducted before the Board on 8 March 2017 and 10 April 2017, during which the applicant answered inquiries raised by the Board.

10. After considering his evidence in the non-refoulement claim form and his oral testimony, the Board highlighted several material deficiencies in his claim. For example, the Board found that on the applicant’s evidence, the applicant and his family were not injured in all the alleged incidents. Further, the incidents in 2005 and 2008 happened some ten years ago and he was still able to reside in his home village long after these two incidents. It also found that the applicant’s allegation on AL’s influence was contradicted by the COI in that the BNP was the ruling party at the material time. Moreover, the Board was not satisfied with the applicant’s fear of being arrested as such allegation was vague, lacking in details and inconsistent with the objective facts. The Board also considered the state protection and internal relocation alternatives and concluded that both were available to the applicant. By the Board’s Decision, the Board rejected his appeal.

The intended judicial review

11. The applicant filed a Form 86 and an affirmation on 11 October 2018 to seek leave to apply for judicial review against the Board’s Decision. No ground for seeking relief was mentioned in his Form 86 or his supporting affirmation of the same date.

The Judge’s Decision

12. As the applicant did not request an oral hearing, the judge considered his leave application on the available documents. The judge found that the applicant was late by more than 14 months in taking out the leave application against the Board’s Decision and that he did not provide any cogent explanation for his delay. He also failed to advance any grounds of review. Having considered the Board’s Decision, the judge held that it had adhered to a high standard of fairness and there was no reasonable prospect of success in the applicant’s intended application. Therefore, the judge refused to grant extension of time to the applicant for leave to apply for judicial review against the Board’s Decision.

Grounds of appeal

13. The applicant filed a Notice of Appeal against the Judge’s Decision on 14 September 2021. He argued that:

(1)  The Director failed to give proper weight to the presence of state acquiescence;
(2)  The Director, the Board and the judge failed to take such argument into account;
(3)  The Board failed to make sufficient inquires before finalizing its decision;
(4)  The Board failed to give him sufficient chance to arrange for relevant evidence to support his claim and his appeal;
(5)  The Director adopted an unfair attitude towards his case.

14. In his written submissions of 28 September 2021, the applicant advanced the following contentions:

(1)  The Board acted in a procedurally unfair manner, contrary to the principle of high standard of fairness laid down in ST v Betty Kwan [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, in assessing the applicant’s credibility;
(2)  The Board and the Director violated the doctrine of reasonableness in their decision-making process as articulated in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233;
(3)  The Board might take into account the factors listed under section 37ZT of Immigration Ordinance, Cap 115 when considering the late filing.

15. These grounds were not raised in his original leave application and none of them are targeted at the Judge’s Decision. While the applicant seeks to challenge the judge’s failure to take into account his argument on the presence of state acquiescence, he did not in fact raise any argument on state acquiescence before the judge. Further, the Board had considered this issue thoroughly at §§49 to 53 of the Board’s Decision, and the judge found no public law errors in the reasoning. This is not a viable ground of appeal against the Judge’s Decision.

Legal Principles

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.

17. 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.

18. In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

Analysis and disposition

19. The applicant’s present grounds against the Director and the Board were not raised in his previous leave application. The Court of Appeal has repeatedly stressed that an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below^{^[6]}. Thus, the Court of Appeal would not entertain his new grounds. On this basis alone, we will dismiss the appeal.

20. In any event, the aforesaid legal principles mandate the applicant to point out with sufficient particularity the errors allegedly committed by the judge in assessing the Board’s Decision. Plainly, the applicant has failed to advance any viable grounds of appeal against the Judge’s Decision.

21. For all these reasons, we dismiss the appeal.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2021] HKCFI 2633

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

[3] This refers to the 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.

[4] 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.

[5] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance.

[6] Re Qadir Sher[2018] HKCA 160 at §11

MIAH MUHAMMAD SHOHAG v. TORTURE CLAIMS APPEAL BOARD

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