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

CAMP 16 /2025, [2026] HKCA 370

On appeal from [2024] HKCFI 2739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 16 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 1983 OF 2019)

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J U D G M E N T

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

Background

1.On 21 October 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.On 21 November 2024, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance.  The summons was dismissed by the judge on 9 January 2025[2].

3.On 23 January 2025, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4.The applicant is a national of Bangladesh.  He claimed that he sneaked into Hong Kong on 20 August 2007.  He was arrested by the police on the same day.  He lodged a torture claim on 7 September 2007, which was rejected by the Immigration Department on 26 November 2013.  His appeal was dismissed by the Board on 16 April 2014.

5.He lodged a non-refoulement claim on 2 December 2013 on the basis that, if refouled, he would be harmed or killed by supporters of the Bangladesh Nationalist Party (“BNP”).

The decisions of the Director and the Board

6.By a Notice of Decision dated 14 September 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds other than torture risk[3], including BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6] as the applicant’s torture claim has previously been rejected.  

7.The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 8 April 2019.  The Board found that the applicant’s recent submissions that BNP is in power go against all credible country of origin information as the Awami League has now been in power.  The Board also found significant inconsistencies in the applicant’s evidence.  The Board did not accept his evidence overall and did not accept that he would be at risk upon his return to Bangladesh.  Therefore, the Board rejected his appeal and confirmed the Director’s decision on 19 June 2019.

The intended judicial review

8.On 15 July 2019, the applicant filed a Form 86 and an affirmation in HCAL 1983/2019 to seek leave to bring judicial review against the Board’s decision.  He put forward the following grounds for his intended challenge:

(1)     His life has been under threat in Bangladesh;

(2)     The officer did not visit Bangladesh and did not know anything about the applicant’s problem.  He refused the applicant’s claim without proper investigation;

(3)     The Board followed the Director’s decision and it is impossible to go to the root of the applicant’s problem without visiting Bangladesh;

(4)     The hearing bundle was only provided to the applicant a few days before the hearing so he had no time to do the preparation.

The judge’s decision

9.The applicant was absent at the hearing scheduled before DHCJ K W Lung on 25 September 2024.  The judge decided to deal with the leave application on paper.

10.The judge found it is not necessary for the adjudicator to go to the applicant’s country to understand the situation there as the adjudicator can rely on the country of origin information and she had done so.  The judge also found that the Board was entitled to adopt the evidence and the views of the Director under the law.  The judge held that the applicant does not have any valid ground to challenge the Board’s decision.  He concluded that there is no realistic prospect of success in the proposed judicial review and dismissed the leave application on 21 October 2024.

Analysis

11.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.

12.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 order was made on 21 October 2024 and the applicant was late by 17 days when he took out the summons at the court below on 21 November 2024.  The applicant did not provide any reason for the delay.  As the applicant failed to show that his delay is excusable, he must show a real prospect of success on the merits to obtain an extension of time to appeal (Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125).

13.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.

14.The applicant did not provide any grounds of appeal in the present application.  He failed to show 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.  There is no prospect of success in the intended appeal.

15.Therefore, we refuse to grant extension of time to appeal against the judge’s decision of 21 October 2024 and dismiss the summons filed on 23 January 2025.

The Applicant, acting in person

[1] [2024] HKCFI 2739

[2] [2025] HKCFI 69 

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

[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.