Shoman Abu Zafor v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 12/2025, [2025] HKCA 454

On Appeal From [2024] HKCFI 2990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 12 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 777 OF 2021)

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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 To (“Judge”) dated 29 October 2024 [1] refusing to grant leave for the applicant to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 25 March 2021. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 11 December 2018 rejecting his non-refoulement claim.

2.On 5 December 2024, the Judge refused to extend time for the applicant to appeal against his decision of 29 October 2024.

Background

3.The applicant is a national of Bangladesh born in 1985. He claimed to have entered Hong Kong illegally from Mainland China on 5 February 2017 and was arrested by the police on 1 March 2017. He lodged his non-refoulement claim on 22 March 2017 on the basis that he would be harmed or killed by members and supporters of the political group, Awami League (“AL”), as a result of his participation in a rally as the party secretary of the political group, No. 4 Kharara Union Council of Jamaat-e-Islami (“Jamaat”), if he was refouled to Bangladesh.

4.The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5] By a notice of decision dated 11 December 2018, the Director rejected the claim.

5.The applicant appealed to the Board against the Director’s decision. The Board held an oral hearing of the appeal on 3 October 2019, at which the applicant gave evidence and answered questions from the Board. In its decision dated 25 March 2021, the Board dismissed the appeal and affirmed the decision of the Director. The Board’s reasoning was summarised by the Judge at [13] to [18] of the Form CALL-1:

“ 13. The Board found the Applicant’s case incredible and aspects of his account were exaggerated or inconsistent with information he gave in other settings. Some of his evidence were inconsistent with authoritative and credible country of origin information (“COI”) and some even defied logic.

14. For example, while claiming to be a general secretary of the Jamaat and that he had the original document, he could only produce an email image of his appointment but not the original. As a general secretary, he was unable to answer some of the basic questions about the Jamaat, such as why it changed its name in 2008, when it changed its logo thereafter and the four points program of the Jamaat. The Board also found his account of his arrest and detention by the police defied logic; his belief of the murder of his two Jamaat colleagues by the RAB was based on hearsay from unknown source; and his account about the police attempt to arrest him in March 2015 was hearsay which was uncorroborated in any way. The Board also found it defied logic that if there were a genuine warrant for his arrest he could depart Bangladesh twice using his own identity through lawful channels.

15. The Board found the Applicant had never been harmed by the AL in any way. He was merely arrested by the police and the ill-treatment he received from the police during his detention was not serious as he could resume work and travel as soon as he was released. The ill-treatment could not have been the reason why he eventually left Bangladesh. The Board also rejected his belief that his arrest by the police and subsequent ill-treatment were inflicted for and on behalf of the AL or pursuant to a conspiracy between the police and the AL.

16. The Board considered his involvement in the Jamaat was relatively minor. His lack of knowledge about the ethos of the Jamaat was consistent with the theory that he was not an important office bearer of the Jamaat.

17. On the basis the COI, the Board found that although there is evidence of police ineffectiveness in Bangladesh, there are objective indications that the government has taken practical steps to maintain public order and safety in its jurisdiction and to improve the effectiveness and monitor police conduct. On balance. it was satisfied that the state was both willing and capable of offering effective protection to its citizens and that state protection would be available to the Applicant. The Board found that as an able-bodied person, the Applicant could safely relocate to Dhaka to avoid the perceived risks from the AL members, which were localised within his home area. Hence, it was also satisfied internal relocation a possible option to avoid or reduce the risk of harm.

18. The Applicant had not participated in the operation of Jamaat since the various incidents in 2015. He had spent some twenty months in Bangladesh without being pursued by any authorities or members from the AL. Taking all the above finding into account together with the passage of time, the Board found that there could not possibly be any substantial grounds for finding that the Applicant would face a real risk of ill-treatment if refouled to Bangladesh. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds being considered. Hence, it dismissed his appeal against the Director’s Notice.”

The Judge’s decisions in the court below

6.On 27 May 2021, 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, without specifying any grounds in that form. In the supporting affirmation, the applicant simply annexed a copy of the Board’s decision and an excerpt of the hearing bundle before the Board.

7.The Judge considered the application on the basis of the documents and the applicant’s submissions made at the oral hearing held on 21 October 2024. On 29 October 2024, the Judge issued his decision to refuse to grant leave to apply for judicial review. The reasons were set out in [19] to [23] of the Form CALL-1 as follows:

“ 19. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

20. The Applicant did not advance any grounds for judicial review in the Form 86 or in his supporting affirmation. At the hearing, he confirmed that he had no complaint about errors of law or irrationality in the Decision. However, he advanced the following argument in support of his ground for review on the basis of procedural unfairness. He claimed that according to an article in the South China Morning Post dated 25 September 2024, the Bangladesh government announced that there will be no general election in the coming 18 months. He submitted that he still had a political case pending in Bangladesh. He was unable to obtain support from the Jamaat because the party was disbanded by the government and the party leaders also disowned him for he had betrayed the party by fleeing from the home country. He said he was told by his wife that the police were still looking for him.

21. Though he argued that these are new facts which occurred after he had left Bangladesh, these new facts are premised on his account that he fled Bangladesh because of his substantial participation in the Jamaat which attracted adverse interest from the AL. But his account had been rejected by the Board as incredible. Thus, true or false, these new facts had no impact on the Board’s Decision because on the Board’s finding he had no participation in the Jamaat which attracted sufficient adverse interest from the AL. The Applicant’s submission could not be a valid ground of application.

22. The Applicant has not advanced any valid grounds for judicial review. In the absence of specific or valid grounds of application, the court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

23. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant an incredible and exaggerating witness. It accepted most of his evidence but not the crucial issue that he had substantial involvement in the Jamaat as to attract attention from the AL members. These are finding facts solely within the realm of the Board. The Board analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.”

8.Around one week after the expiry of the 14-day time limit for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant filed a summons on 20 November 2024 together with a supporting affirmation to apply for extension of time for filing the notice of appeal. In his affirmation, the applicant attached 14 pages consisting of his submissions, a one-page translated document purportedly listing out committee members of the Jamaat in 2014 and a copy of his Form CALL-1. On 5 December 2024, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any realistic prospect of success in his intended appeal, despite the Judge’s acceptance of the applicant’s explanation for the delay.

The renewed application before this Court

9.By summons filed on 16 January 2025, the applicant made an application for leave to appeal out of time against the order of the Judge given on 5 December 2024. We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 29 October 2024 refusing leave for judicial review.

10.In the applicant’s supporting affirmation, he attached the Judge’s decision dated 5 December 2024 and a document labelled as “Grounds for CAMP appeal”. In short, the applicant’s grounds are that the decisions of the Director and the Board were determined unfairly, that he was deprived of legal and language assistance in the appeal process resulting in procedural unfairness to him, that no oral hearing was held by the court and only documents were considered, that the decision of the Board had not been read to him in his native language, that his grounds of appeal were prepared by himself without legal assistance, and that he requests an oral hearing. The applicant further submits, broadly speaking, that the Board made a number of errors in its decision, including failing to conduct a specific assessment of the risk in relation to him personally, failing to analyze the substance of his claim, failing to consider that mere existence of legal representation does not guarantee that personal specific risk has been properly advanced and considered, failing to analyze the impact of deportation on him, focusing on the accuracy of the applicant’s memory instead of analyzing the risk of harm to him, focusing on irrelevant matters in determining its decision, relying on the applicant’s alleged inconsistencies and not reasons leading to such circumstances, failing of the Judge to give him an opportunity to explain himself, and failing to afford him representation in his judicial review.

11.The applicant has lodged written submissions in which he generally repeats the submissions made in his supporting affirmation.

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 around one week when he filed his initial summons on 20 November 2024. In his supporting affirmation, the applicant stated, in brief, that he only received the Form CALL-1 on 6 November 2024 while he was detained, that he lacked legal assistance, and that he had specific replies to the fact-finding results of the Board. As we agree with the Judge that this is not a very lengthy delay in light of his circumstances of being detained at [4] of his decision, 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 risk of harm to the applicant from the AL to be low, that aspects of his claim were incredible and unbelievable, that the alleged events had occurred many years ago, that his previous position with the Jamaat was minor and he had not been active with them since, that there would be adequate state protection, and that internal relocation to Dhaka would be viable. The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision. Contrary to the applicant’s submissions that the Board had not considered specific assessment of risks to the applicant, we are of the view that the Board had in fact considered the applicant’s risks and circumstances extensively in its decision.

16.As to the complaints about lack of language and legal assistance, it has also been repeatedly stated by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11]. We note that all the Court documents filed by the applicant in this appeal and in the Court below were in English. It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary. Further, we note that the applicant was legally represented in the initial preparation of his case by the completion of the non-refoulement claim form and the screening interview with the Director, which formed the basis of his claim. We do not find the non-availability of legal representation in the processes before the Board or the court to amount to any procedural unfairness.

17.As for complaints relating to not having an oral hearing to make submissions or an opportunity to voice out or advance his case to a judge, the applicant clearly had opportunities to make written submissions of which he had availed himself at various stages in the appeal process before this court and in the lower court. Also, contrary to his allegations, as stated by the Judge at [7] of his decision, the applicant did in fact attend an oral hearing before the Judge, where the legal principles of judicial review were explained to him and he had an opportunity to make oral submissions in addition to previously lodged written submissions. As such, we do not find any procedural unfairness in this regard.

18.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.

19.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 ground to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review.

20.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 16 January 2025 is accordingly dismissed.

The Applicant, unrepresented, acting in person