Case Detail

CACV 332 /2022, [2023] HKCA 1026

On appeal from [2022] HKCFI 2288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 332 OF 2022

(ON APPEAL FROM HCAL NO 2289 OF 2018)

________________________

BETWEEN
	Jahangir Hossain	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 G Lam JA in Court

Date of Written Submissions:	25 April 2023
Date of Judgment:	11 September 2023

____________________

J U D G M E N T

____________________

Hon Kwan VP (handing down the Judgment of the Court):

1. This is an application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 17 February 2023 ([2023] HKCA 179). The Court of Appeal dismissed the applicant’s appeal against the decision of Deputy High Court Judge K W Lung dated 8 August 2022 refusing to grant extension of time for the applicant to seek leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged written submissions 5 days late on 25 April 2023. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

Grounds of appeal

3. The applicant stated his grounds of appeal in his Notice of Motion filed on 6 April 2023 which may be summarised as follows:

(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 judge was wrong as a matter of law for not having applied the principle of irrationality to the decision of the Director;
(3)  There is some error in the decision. Decision maker just relied on the country of origin information (“COI”) and facts which favour the rejection of his claim;
(4)  Actual life is different from the situation mentioned in the COI. “Officer and courts” prefer to ignore the overwhelming evidence of violence towards minorities searching for unrealistic silver lining;
(5)  The judge did not apply the law properly;
(6)  The applicant would be killed or harmed if he returns to his country.

4. In his written submissions, he reiterated the problems he faced in his home country and contended that the immigration officer could not realize the seriousness of his case. He further submitted that high standards of fairness are required in the determination of a torture claim on the part of the decision maker and the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

5. 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).

6. 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.

7. The applicant was late for more than 2 weeks in filing the Notice of Motion. He explained in his affirmation that he was unrepresented and was unaware of the rules regarding the time limit. Ignorance of the rules cannot be accepted as a valid excuse for non-compliance. There is no good ground in the present case for the court to grant extension of time to file the Notice of Motion.

8. In any event, the applicant’s intended appeal is devoid of merits. His complaint on the Board’s failure to properly assess his credibility is without basis. The Board had given detailed analysis concerning the applicant’s credibility in paragraphs 51 to 57 of its decision. The applicant has not put forward any evidence to refute the Board’s findings.

9. The rest of his grounds and submissions are not supported by specifics or evidence. Moreover, he 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 6 April 2023.

(Susan Kwan)
Vice President

(Godfrey Lam)
Justice of Appeal

The Applicant (Appellant), acting in person

CACV 332/2022

[2023] HKCA 179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 332 OF 2022

(ON APPEAL FROM HCAL NO 2289 OF 2018)

________________________

BETWEEN
	Jahangir Hossain	Applicant
	and
	Torture Claims Appeal Board /	Putative
	Non refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and G Lam JA in Court

Date of Judgment:

17 February 2023

________________________

J U D G M E N T

________________________

Hon Kwan VP (handing down the Judgment of the Court):

1. On 8 August 2022, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to seek leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 19 August 2022.

2. The applicant is a national of Bangladesh. He is 49 years old. He came to Hong Kong as a visitor on 16 April 2005 and subsequently overstayed. He was arrested by the police on 29 May 2007 and lodged a torture claim on 30 July 2007. He requested to withdraw his claim on 10 October 2007. He was then repatriated to Bangladesh on 26 October 2007.

3. He entered Hong Kong illegally on 4 October 2009 and was transferred to the Immigration Department for investigation on 10 October 2009. He raised a torture claim on 11 October 2009 and requested to withdraw his claim on 4 January 2010. He was arrested by the police on 26 May 2010 for taking up unapproved employment. He requested to re-open his torture claim on 8 July 2010. His torture claim was treated as a non-refoulement claim upon the commencement of the unified screening mechanism. His claim was made on the basis that, if refouled, he would be harmed or killed by his enemy due to a land dispute.

The Director’s decision

4. By a Notice of Decision dated 11 June 2015, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on torture risk[2], BOR 3 risk[3] and persecution risk[4].

5. The Director held that the alleged risk of harm was not as real and imminent as asserted because the applicant only had only sustained minor injuries in the incidents. In view of the low intensity and frequency of past ill-treatment, it was assessed that the future risk of harm from the enemy is small. Considering the long history of dispute, the Director found it inconceivable that the applicant could not even provide the name of his enemy without referring to the land deeds which was said to have been lost in the fire incident. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.

The Board’s decision

6. The applicant’s appeal against the Director’s decision was heard before the Board on 2 September 2016. The Board found the applicant’s claim implausible because of the significant inconsistencies in his evidence. The Board further considered that the alleged dispute is a private one which does not involve any public authorities and the alleged ill-treatment has not attained the requisite minimum level of severity. The Board also decided that reasonable state protection and internal relocation options are available to the applicant in Bangladesh. Thus, the Board concluded that the applicant failed to establish his claim and rejected the appeal on 26 April 2017.

The intended judicial review

7. The applicant filed a Form 86 and an affirmation on 22 October 2018 to seek leave to apply for judicial review against the decision of the Board. The applicant stated in his supporting affirmation that the decisions of the Director and the Board were unreasonable in that they failed to consider all the matters raised in his claim and/or to give adequate reason for the decisions.

The judge’s decision

8. DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The application was late for about 15 months. The judge considered that the applicant’s grounds are just bare assertions or his own opinions without any evidence in support. The judge also held there is no error of law or procedural unfairness in the Board’s decision. As the applicant failed to show any realistic prospect of success in his intended judicial review, the judge refused to grant extension of time for the applicant to apply for judicial review and dismissed the application on 8 August 2022.

Grounds of appeal

9. In the Notice of Appeal filed on 19 August 2022, the applicant stated his grounds of appeal as follows:

(1)  the applicant will face hardship if he is to return to his home country;
(2)  the Board relied on news which is simply hearsay or from a source which is not officially recognized;
(3)  the Board relied upon outdated cases, resulting in its groundless speculations.

Non-compliance with order for lodging of skeleton argument

10. Directions were given by the Registrar of Civil Appeals on 7 October 2022 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing and elect to have this appeal disposed of on paper. The Registrar has also made it clear that the hearing date that has been fixed shall be vacated under such circumstances and the Court of Appeal shall proceed to consider this appeal on paper only without further notice.

11. The appeal was scheduled to be heard on 4 January 2023. The applicant failed to lodge skeleton argument by the prescribed deadline on or before 7 December 2022. As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. By letter dated 19 December 2022, the court informed the applicant that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal.

Legal Principles

12. 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.

13. An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. 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.

Analysis and disposition

14. The applicant failed to give any particulars, elaboration or evidence in support of his grounds of appeal. He also failed to identify any errors of the judge or failure to take account of relevant matters already placed before the court.

15. As the appeal is devoid of merits, we order the appeal be dismissed.

(Susan Kwan)
Vice President

(Godfrey Lam)
Justice of Appeal

The Applicant, acting in person

[1] [2022] HKCFI 2288

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] 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).

[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.

JAHANGIR HOSSAIN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

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