Md Didhar Hossain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 237/2024, [2025] HKCA 189

On Appeal From [2024] HKCFI 2401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 237 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1904 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) dated 27 September 2024[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 5 June 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 29 June 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant, aged 38, is a national of Bangladesh. He entered Hong Kong illegally on 15 June 2009 and was arrested by the police on the same day. The applicant made a torture claim on 18 June 2009. He was arrested by the police again on 27 June 2012 for taking up employment while being a person that landed in Hong Kong unlawfully and was sentenced to imprisonment of 14 months. The applicant’s torture claim was rejected on 23 July 2013 and his subsequent appeal was also dismissed on 17 March 2014. The applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[2] on 25 July 2013. The claim was made on the basis that, if refouled, he would be harmed or even killed by someone called Golam Mustafa and his fellow Awami League supporters because he had fought against them for extorting money from Bangladesh Nationalist Party supporters.

3.The applicant’s claim was assessed by the Director with reference to the following risks, namely, BOR 3 risk,[3] BOR 2 risk[4] and persecution risk.[5] By a notice of decision dated 29 June 2018, the Director rejected the claim.

4.The applicant appealed to the Board against the Director’s decision. The Board held an oral hearing of the appeal on 31 October 2018, during which the applicant gave evidence and answered questions from the Board. In its decision dated 5 June 2019, the Board dismissed the appeal and affirmed the decision of the Director. The Board found that the applicant was not a witness of truth due to the inconsistencies in his evidence. It was not accepted that the applicant was and would be politically active, so that he would not face any real risk of harm upon refoulement to Bangladesh. Based on such findings, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

The Judge’s decisions in the court below

5.On 8 July 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. The grounds for his judicial review as provided in his supporting affirmation were set out in [21] of the Judge’s decision dated 27 September 2024 as follows:

“ (1) He did not have legal assistance for his appeal and the hearing bundle was given to him shortly before the hearing without provision of translation or interpretation. Therefore, he did not have sufficient time to prepare for his case. He was confused, but he had answered all the questions put to him.

(2) The Board did not notify him of its Decision by phone despite his request.

(3) The Board had relied on the source of news is not officially recognized or it is simply hearsay. It had also relied on outdated cases. All these resulted in it making groundless speculations that it is safe for him to return to his country.

(4) There was no screening for his BOR 2 risk claim.

(5) The Board reached its decisions without going to his country to understanding his real situation in his country.”

6.An oral hearing was held on 14 August 2024, during which the applicant appeared before the Court in person. On 27 September 2024, the Judge issued his decision refusing to grant the applicant leave to apply for judicial review. The reasons were set out in [22] to [28] of the Judge’s decision dated 27 September 2024 as follows:

“ 22. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

23. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was wrong because it did not accept his evidence.

24. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

25. The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

26. For those grounds under paragraph 19, he is not entitled to free legal representation throughout the proceedings[6] and he is not entitled to interpretation all the time[7]. He did not ask the Board to adjourn the hearing to give him more time for his preparation and he said that he had answered all the questions put to him by the Board. The law does not provide that the Board has to notify him of its decisions by phone. There is no evidence to support his allegation that the Board had made speculations that he is safe to return to his country. There had been screening by the Director for BOR 2 risk. It is unnecessary for the adjudicator to go to his country for the situation there as it can rely on the country of origin information. All those grounds fail.

27. There is no reason that the Court should interfere with the Board’s findings of the facts.

28. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

7.On 21 October 2024, 10 days[8] after the expiry of the 14-day limit for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant made an application for leave to appeal out of time the Judge’s decision dated 27 September 2024. He claimed in his supporting affirmation that he was late because he did not receive the Judge’s decision on time.

8.On 21 November 2024, the Judge dismissed the applicant’s application for extension of time to appeal on the ground that there was no realistic prospect of success in the intended appeal.

The renewed application before this Court

9.By summons filed on 3 December 2024, the applicant made an application to this Court for leave to appeal the Order of the Judge dated 21 November 2024 out of time. We shall treat this as a renewed application for extension of time to appeal against the Judge’s decision dated 27 September 2024, which refused the applicant leave for judicial review.

10.In the summons and the applicant’s supporting affirmation, he again claimed that he was late because he did not receive the Judge’s decision of 27 September 2024 at his address on time.

11.In the written submissions lodged by the applicant on 17 December 2024, he first repeated his reasons for the delay and claimed throughout his submissions that his life was still in danger. He also made bare assertions that the decision makers had failed to take relevant matters/had taken irrelevant matters into consideration and that they did not follow the requisite high standard of fairness.

12.Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.The applicant was late for 10 days when he filed his initial summons on 21 October 2024. He stated that the delay was due to his failure to receive the Judge’s decision of 27 September 2024 at his address on time. We do not accept such explanation given that the decision was sent to his last known address without being returned undelivered. Nonetheless, having regard to the relatively short delay, we are prepared to focus on the merits of his intended appeal.

14.In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing 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 the appeal were a fresh application for judicial review.

15.In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. The Board had heard the applicant and assessed his evidence providing detailed reasons. The Board rejected the applicant’s non-refoulement claim because it considered that the applicant was not a witness of truth. It was not accepted that the applicant was and would be politically active, so that he would not face any real risk of harm upon refoulement to Bangladesh. The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

16.It has to be borne in mind that judicial review is not a further avenue of appeal. The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision. The applicant has failed to establish or even identify any such public law grounds.

17.The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced. The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review.

18.In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused. The applicant’s summons dated 3 December 2024 is accordingly dismissed.

The Applicant, unrepresented, acting in person