Mia Milon v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 54/2025, [2025] HKCA 625

On An Intended Appeal From [2024] HKCFI 1710 &

[2024] HKCFI 2749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 54 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 1718 OF 2019)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.On 14 March 2025, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 24 October 2024 refusing to grant him an extension of time to appeal against the Judge’s earlier order dated 26 June 2024 (“the Order”) refusing to grant leave to apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 14 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 June 2018.

3.Having considered the documents filed herein, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.The Applicant is a national of Bangladesh.  He claimed that he entered Hong Kong illegally in August 2012.  On 29 April 2013, he was arrested by the police.  On 2 May 2013, he raised a torture claim[1].  His torture claim was rejected by the Director on 12 September 2013, and his appeal against the rejection of the torture claim was dismissed by the Board on 3 June 2014.  In the meantime, on 18 October 2013, he lodged a non-refoulement claim, which was assessed on all applicable grounds other than the risk of torture.  His claim was made on the basis that, if refouled, he would be harmed or killed by members of the Awami League (“AL”), because he belonged to the Bangladesh Nationalist Party and refused to join AL.  Details of the Applicant’s claim have been summarised by the Judge at §§4-10 of the CALL-1 Form ([2024] HKCFI 1710).

5.By a Notice of Decision dated 21 June 2018 (“the Director’s Decision”), the Director rejected the Applicant’s non-refoulement claim on the remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

6.The Applicant appealed the Director’s Decision to the Board.  On 14 June 2019, the Board dismissed the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision have been summarised by the Judge at §§15-17 of the CALL-1 Form, as follows:

“[15] The Board noted that the [Applicant] had not made any attempt to seek non-refoulement protection in Mainland China and that he only sought protection in Hong Kong after being arrested a few months later [25]-[26]. It did not accept the [Applicant’s] excuse for his inaction and had doubts towards his credibility [27]-[28].

[16] The Board also noted a number of inconsistencies and contradictions in the [Applicant’s] evidence, regarding (i) his first encounter with the seven AL people; (ii) his stay in India; (iii) injuries he suffered from the fight in 2011 and the treatment received thereafter; and (iv) places he stayed while in Dhaka [40]. Furthermore, there was no reliable evidence showing that the [Applicant] was specifically targeted by AL and the claimed injuries he suffered did not reach the minimum level of severity. In any event, the claimed threats also happened a long time ago [41].

[17] Based on such findings and in light of the country of origin information indicating the availability of state protection [55]-[59], [62] and internal relocation [73]-[78], the Board concluded that the [Applicant’s] case failed to meet any of the requirements under Persecution risk [43]-[54], [63], [79], or BOR 2 and BOR 3 risk [64]-[71], [80]-[81].”

7.On 21 June 2019, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.  No ground for seeking relief was given in the Form 86.  In his supporting affirmation of the same date, he asked to be allowed to stay in Hong Kong.

THE JUDGE’S DECISION

8.On 26 June 2024, the Judge gave a decision refusing to grant the Applicant leave to apply for judicial review, for the following reasons:

“[21] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[22] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

…

[24] For the reasons given above, the Board rejected the [Applicant’s] evidence in support of his claim. I consider that the Board was entitled to do so under those circumstances.

[25] There is no reason that this Court should interfere with the Board’s finding of the facts.

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

9.On 26 June 2024, the decision and the Order were sent to the Applicant’s last reported address without being returned through the undelivered post.  At the Applicant’s request by letter dated 29 August 2024, the decision and the Order were sent to the Applicant again on 12 September 2024 at another address provided by him without being returned through the undelivered post.

10.On 3 October 2024, the Applicant applied by summons for an extension of time to appeal against the Order.  On 24 October 2024, the Judge refused the application, holding that the Applicant had failed to provide any good explanation for the delay and there was no valid reason to challenge the Board’s Decision ([2024] HKCFI 2749).

THIS APPLICATION

11.By a summons taken out on 14 March 2025 in the Court of Appeal, the Applicant applied for leave to appeal out of time against the Judge’s order of 24 October 2024.  In the summons, the Applicant stated that the Judge’s decision was unreasonable, without giving any particulars.  In his supporting affirmation, the Applicant repeated the factual basis of his non-refoulement claim.  He asserted that it would be dangerous for him to return to Bangladesh due to the current situation there.  To illustrate the dangerous condition in Bangladesh, he reproduced various passages allegedly taken from news articles published in the South China Morning Post between 3 August 2024 and 4 September 2024 (“the Purported News”).

12.In his written submissions lodged on 21 March 2025, the Applicant repeated what he had previously stated in his supporting affirmation.

DISCUSSION

13.Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, at §§3-8, we shall treat the present application as a renewed application for an extension of time to appeal against the Order.

14.In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

15.In the present case, the Applicant’s delay is substantial, and he has given no good or valid explanation for his delay.

16.The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

17.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, 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 judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst,at §14(6)).

18.Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the Board’s Decision is shown in the present case.

19.The Applicant has failed to point to or show any error in the Judge’s decision of 26 June 2024, or raise any viable ground of appeal against the Order.

20.The news articles mentioned in his supporting affirmation is new evidence.  It appears that the Applicant wishes to rely on them as updated country of origin information for the purpose of his intended appeal.  However, the Applicant has not made any application for leave to adduce new evidence. 

21.In any event, to justify the admission of new evidence, the Applicant has to satisfy the three conditions established in Ladd v Marshall [1954] 1 WLR 1489[5] (see Nupur Mst, at §14(3)).  The Applicant has failed to show that the Ladd v Marshall conditions are satisfied.  In particular, he has failed to show that the proposed new evidence would or might, if believed, have a very important effect on the Judge’s decision.  There is no exceptional circumstance to justify exercising our residual discretion to admit the proposed new evidence notwithstanding the non-satisfaction of the Ladd v Marshall conditions.

22.In any event, the proposed new evidence would not advance the Applicant’s non-refoulement claim or his intended appeal.  In rejecting the Applicant’s claim, the Board found inconsistencies and contradictions in the Applicant’s evidence and did not find his claim to be credible. As earlier mentioned, assessment of evidence and country of origin information is a matter primarily within the province of the Board.  

23.There is no prospect of success in the Applicant’s intended appeal.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

24.The Applicant’s summons taken out on 14 March 2025 is dismissed.

The Applicant, acting in person

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the 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.

[5] The three conditions are: (1) it must be shown that the evidence could not have been obtained with reasonable diligence for use in the court below; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (3) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.