ASHRAFUL ALOM v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE APPOINTED TO DETERMINE THE APPLICANT’S PETITION AND ANOTHER

CAMP 1/2021

[2021] HKCA 1558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 422 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.  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 G Lam JA) handed down on 14 July 2021 ([2021] HKCA 990). The Court of Appeal dismissed his application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan dated 21 June 2019 ([2019] HKCFI 450) 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 29 July 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 12 August 2021.  Having considered his written submissions and the papers, we consider it appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Bangladesh.  He entered Hong Kong as a visitor on 5 April 2005 and subsequently overstayed.  He was arrested by the police on 21 March 2007.  He lodged a torture claim on 4 April 2007 on the basis that if he returns to Bangladesh he will be harmed or killed by the supporters of the Bangladesh Nationalist Party (“BNP”) as he quitted BNP to join the Bikalpa Dhara Bangladesh and refused their demand to rejoin BNP.

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 almost ten months, excluding the month of August for the court’s summer vacation.  It was refused by the judge on 10 November 2020^[1]. 

5.  The applicant renewed his application to the Court of Appeal on 4 January 2021.  The application was dismissed by the Court of Appeal on 14 July 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  In the Notice of Motion, the applicant only stated that he wants to go to the Court of Final Appeal because he did not get justice, without giving any particular grounds of appeal against the decision of the Court of Appeal. 

7.  In his written submissions, he reiterated the problem he faced in Bangladesh as well as the procedural history of his case and stated that he did not receive the letter from the court concerning the dismissal of the leave application.

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.  In the present application, the applicant has not put forward any viable ground 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).

10.  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 29 July 2021.

CAMP 1/2021

[2021] HKCA 990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 422 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 21 June 2019, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1].

2.  On 1 June 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his notice of appeal ended on 5 July 2019.  The summons was scheduled to be heard by the judge on 18 September 2020 but the applicant did not appear at the hearing.  The application was dismissed by the judge on 10 November 2020^[2].

3.  On 4 January 2021, the applicant filed the present summons indicating that the judge gave a wrong decision against him and stating in his supporting affirmation that he seeks leave to apply for judicial review against the decisions of the adjudicator and the judge.  This application should be treated as a renewed application for leave to appeal out of time against the judge's decision of 21 June 2019 (see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.  The applicant is a national of Bangladesh.  He is 40 years old.  He entered Hong Kong on 5 April 2005 as a visitor and subsequently overstayed.  He was arrested by the police on 21 March 2007 for overstaying and taking up employment without permission.  He was convicted of the offences of taking up unapproved employment in Hong Kong and was sentenced to imprisonment for 22 months and 2 weeks.

5.  He lodged a torture claim on 4 April 2007 which was later taken as a non-refoulement claim.  His claim was made on the basis that if he returns to Bangladesh he will be harmed or killed by the supporters of the Bangladesh Nationalist Party (“BNP”) as he quitted BNP to join the Bikalpa Dhara Bangladesh and refused their demand to rejoin BNP.

The Director’s decision

6.  By a Notice of Decision dated 28 August 2017, the Director rejected the applicant’s claim on all applicable grounds including torture risk^[3], BOR 2 risk^[4], BOR 3 risk^[5] and persecution risk^[6]. 

The Board’s decision

7.  The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 19 January 2018.  The Board assessed that the BNP members had no intention to carry out their threats of causing serious harm to the applicant or killing him at all as the applicant did not suffer serious injuries from the previous assault and nothing happened to him during the month he stayed in Dhaka before he left for Hong Kong.  The Board also considered that internal relocation is a viable option to the applicant to avoid the BNP members if he is to be returned to Bangladesh.  Therefore, the Board dismissed the appeal on 26 February 2018.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 15 March 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  He put forward the following grounds for his intended challenge:

(1)  the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2)  their decisions were not fair or reasonable as required by the Wednesbury test;

(3)  they failed to take into consideration that right to life must be protected from extra-judicial killings which he may face if deported to Bangladesh; and

(4)  the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal. 

The judge’s decision

9.  A hearing was conducted before DHCJ Bruno Chan on 12 February 2019.  The judge held that the applicant does not have any reasonably arguable basis for his intended challenge as he failed to provide any particulars or specifics or elaborations as to how the grounds stated in his Form 86 applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way their decisions were unfair or unreasonable, or why extra-judicial killings would be relevant to his claim, or how the adjudicator failed to give him sufficient time or opportunity to provide relevant evidence.  The judge also considered there is no error of law or procedural unfairness in the decisions of the Director and the Board or any failure on their part to apply high standards of fairness in their consideration of the claim.  The judge concluded that the intended judicial review does not have any prospect of success and dismissed the application on 21 June 2019.

Grounds of intended appeal

10.  The applicant stated the following grounds in his summons:

(1)  the judge gave a wrong decision against the applicant;

(2) the applicant’s claim is true and correct but the judge did not consider it.

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 21 June 2019.  The applicant took out a summons at the court below on 1 June 2020.  He was late by almost ten months^[7].  The delay is very substantial. 

13.  In the present application, the applicant failed to provide any explanation for his substantial delay and did not provide any particulars or elaboration to demonstrate how the judge was wrong in dismissing his application.  His grounds are just bare assertions without any basis.  He failed to demonstrate there is any prospect of success in the intended appeal. We therefore refuse to grant leave to appeal out of time and dismiss the summons filed on 4 January 2021.