Case Detail

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

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[2023] HKCA 1171-EN-2023-10-13

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

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CAMP 362 /2022, [2023] HKCA 1171

On appeal from [2022] HKCFI 1904

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 362 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1117 OF 2019)

________________________

BETWEEN
	Shamim	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 Barma JA in Court

Date of Written Submissions:	3 May 2023
Date of Judgment:	13 October 2023

________________

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 handed down on 24 February 2023 ([2023] HKCA 218). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 23 June 2022 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s 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 his written submissions one day late on 3 May 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.

3. The applicant is a national of Bangladesh. He was arrested for illegally remaining in Hong Kong on 14 February 2016 and subsequently raised his non-refoulement claim on 3 March 2016. The applicant’s claim is made on the basis that he would be ill-treated or killed by members of the Awami League because of his political affiliation with the Bangladesh Nationalist Party, an opposing political party.

4. He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 16 August 2022 [1].

5. On 21 September 2022, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal. The application was dismissed by the Court of Appeal on 24 February 2023 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6. In the Notice of Motion filed on 18 April 2023, the applicant only stated that he did not get justice so he wants to go to the Court of Final Appeal to get justice.

7. In his written submissions, he reiterated the procedural history of his claim and the problems he faced in his home country. He further submitted that he wants to go to the Court of Final Appeal to speak for the interests of all asylum seekers.

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. 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).

9. 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.

10. The applicant was late for more than 5 weeks in filing his Notice of Motion. He did not provide any explanation for his delay. Thus, there is no good ground for the court to grant extension of time for him to take out the present application.

11. In any event, the applicant did not point out any mistakes in the judgment of the Court of Appeal, nor did he 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).

12. 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 18 April 2023.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant, acting in person

[1] [2022] HKCFI 2361

CAMP 362/2022

[2023] HKCA 218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 362 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1117 OF 2019)

________________________

BETWEEN
	Shamim	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 Barma JA in Court

Date of Written Submissions:	10 October 2022
Date of Judgment:	24 February 2023

________________________

J U D G M E N T

________________________

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

1. On 23 June 2022, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review against the decisions of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2. On 16 August 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show he has any reasonable prospect of success in his intended appeal[2].

3. On 21 September 2022, the applicant filed the present summons with the Court of Appeal to challenge the decision of the Court. In light of the decision Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of the judge dated 23 June 2022.

4. The applicant is a national of Bangladesh. He is 51 years old. He was arrested for illegally remaining in Hong Kong on 14 February 2016 and subsequently raised his non-refoulement claim by way of written representation dated 3 March 2016. The applicant’s claim is on the basis that he would be ill-treated or even killed by members of the Awami League because of his political affiliation with the Bangladesh Nationalist Party (“BNP”), an opposing political party.

5. By a Notice of Decision dated 11 July 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim under all applicable grounds including torture risk[3], BOR 2 risk [4], BOR 3 risk[5], and persecution risk[6].

6. The applicant appealed against the Director’s Notice of Decision to the Board and attended the hearing before the Board on 14 January 2019. The Board did not accept the applicant’s claims. The Board held there was no information to substantiate that members of the BNP were being killed by the Awami League as per the information provided in the Country of Information relating to Bangladesh. As mentioned by the judge, although the Board did not expressly affirm the Director’s decision, it can be assumed that the Board agreed with the Director’s decision when the Board rejected the appeal on 15 April 2019.

The judge’s decision

7. On 26 April 2019, the applicant applied for leave to apply for judicial review against the Board’s decision. There were no grounds provided for seeking relief and in his supporting affirmation, he repeated the background of his case and further made allegations of the dangers he would face if he is returned to Bangladesh. The applicant requested an oral hearing but failed to attend, therefore, the judge dealt with the application on paper.

8. The judge held there was no ground in support of the applicant’s application. Besides, the judge did not find any error of law or procedural unfairness in the decision of the Board in the consideration and assessment of the applicant’s claim. In conclusion, the judge found there is no reasonably arguable basis in the applicant’s intended challenge and dismissed the leave application for judicial review on 23 June 2022.

Grounds of appeal

9. The applicant did not provide any grounds of appeal in his summons or his supporting affirmation save that he did not get the decision from the Court, which was contended before the judge below in seeking leave to appeal out of time. As the judge stated, the Court’s decision was sent to his last known address on 23 June 2022 according to the record. As for the applicant’s written submissions, he again repeated his contention that he did not receive documents from the Court and his claims of facing risk of harm if he is returned to Bangladesh.

Analysis and disposition

10. 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.

11. 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 judge’s order was made on 23 June 2022. The applicant took out a summons in the court below on 12 July 2022. He was late for 3 days. In view of the short delay, we shall focus on the merits of the application.

12. In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

13. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

14. The applicant’s grounds are merely bare assertions. More importantly, the applicant failed to identify the particular errors allegedly made by the judge. As to the applicant’s allegations that he did not receive Court documents, this has been dealt with by the judge in his decision dated 16 August 2022 at §5.

15. For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 23 June 2022 and dismiss the summons filed on 21 September 2022.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant, acting in person

[1] [2022] HKCFI 1904

[2] [2022] HKCFI 2361

[3] 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.

[4] 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).

[5] 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).

[6] 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.