Re: ISLAM NAZRUL

CAMP 93/2023, [2026] HKCA 1256

On appeal from [2021] HKCFI 798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 93 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 2399/2019)

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J U D G M E N T

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

1.This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”) given on 25 March 2021[1] (“the Leave Decision”) refusing to grant leave to the applicant to apply for judicial review.

2.The applicant, by a Form 86 filed on 20 August 2019 (“the Form 86”), sought leave to apply for judicial review (“the Leave Application”) against the decision of the Torture Claims Appeal Board (“the Board”) given on 12 August 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration given on 31 July 2018. 

3.In the supporting affirmation to the Form 86, the applicant requested that an oral hearing be fixed for the determination of the Leave Application.

Procedural background and the applicant’s right to an oral hearing

4.O.53 r.3 of the Rules of the High Court (Cap 4A) (“the Rules”) sets out, inter alia, the applicable procedure for the determination of the Leave Application.  Rule 3(3) provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the applicant.” (emphasis added)

5.Despite the applicant’s request for an oral hearing, according to the court’s records, the Leave Application had not been listed or fixed for hearing.  In this case, the Judge dealt with the Leave Application on the papers.

6.In this connection, this court has previously held that by reason of the clear wording of O.53 r.3(3) the Rules and the applicant’s express request for an oral hearing, it was not open for the Judge, nor could he invoke discretionary powers of the court, to determine the Leave Application on the papers.  It is thereforearguable that the Judge had erred in law and fact in determining the Leave Application without an oral hearing.  See Re Hossain Anowar [2023] HKCA 1361 at [10]-[11]; Re Mondal Sumitra Rani [2023] HKCA 1063 at [19]-[21]; Re Pervin Jahanara [2023] HKCA 1064 at [20].

7.It therefore follows that in exercising his discretion to refuse leave to the applicant to apply for judicial review without an oral hearing, the Judge had arguably reached the Leave Decision on an erroneous basis in law.

8.Applications such as the present are usually determined on the papers.  By reason of the aforesaid special circumstances, this court would have directed of its own motion that a hearing be fixed in order that the applicant be afforded an opportunity to make oral submissions to this court in support of the present application, as well as to make submissions which he would have made to the Judge in the court below had a hearing for the determination of the Leave Application been fixed pursuant to his request.

9.However, this court was notified by the Immigration Department on 13 September 2024 that the applicant has been removed from Hong Kong.  In the circumstances, there would be no practical purpose for this court to fix a hearing for the applicant as alluded to above.

10.Notwithstanding that no hearing will be fixed for the applicant to make submissions to this court, by reason of the problematic basis on which the Leave Decision was reached by the Judge, this court will in any event, in its determination of the present application, exercise afresh the court’s discretion with respect to the Leave Application by its own examination and scrutiny of the Board’s Decision to determine whether leave to apply for judicial review should have been granted to the applicant by the Judge.  

The applicant’s non-refoulement claim

11.The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision have been set out therein and summarised by the Judge in the Leave Decision at [1]-[7], which will not be repeated. 

12.After considering the documents filed by the applicant, the Judge dismissed the application for the reasons stated at [8]-[18] of the Leave Decision.  

13.By a decision dated 9 February 2023[2] (“the EoT Decision”), the Judge refused to extend time for the applicant to appeal against the Leave Decision.  

The present application for extension of time to appeal

14.According to the court’s record, a copy of the Leave Decision and a sealed copy of the Judge’s order was sent by post to the applicant at his last known address on 25 March 2021, which was not returned undelivered.

15.Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days from the date of the Leave Decision.

16.Subsequently, the applicant made an application in the court below for an extension of time to appeal against the Leave Decision, which was dismissed by the Judge for the reasons stated in the EoT Decision.

17.By a Summons filed on 1 March 2023, the applicant renewed his application for an extension of time to appeal before this court.  In the Summons, he cited a wholly different reason for his desire to appeal against the Leave Decision, now claiming that he “did not get the High Court letter on time”.

18.In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court. He is thus deemed to have abandoned his right to rely on written submissions.

19.We acknowledge that the applicant had in his supporting affirmation to the Form 86, under O.53 r.3(3) of the Rules, requested for an oral hearing before the Judge.  As we stated above, it was notopen to the Judge to determine the leave application on the papers in these circumstances.  In this case, we note that the Judge in his decision had nonetheless proceeded to determine the application on the papers.

20.As mentioned above, although it would now (by reason of the applicant’s removal) be pointless for a hearing to be fixed for the purpose of the present application, this court will exercise the Judge’s discretion afresh as to whether leave to apply for judicial review should have been granted to the applicant.

Discussion

21.As stated above, it was arguable that in the present circumstances the Judge had erred in law and fact in determining the applicant’s application for leave to apply for judicial review without an oral hearing.  We have therefore considered and decided to exercise the Judge’s discretion in respect of the applicant’s Leave Application afresh.

22.In the Summons and affirmation filed for the present applicant, the applicant did not rely on the lack of an oral hearing for the Leave Application as an intended ground of appeal, nor did he therefore suggest how, if at all, the lack of an oral hearing in the court below had prejudiced or impacted in any way upon the fair determination of the Leave Application.

23.For the following reasons, we are of the view that despite the procedural irregularity, the present application for extension of time to appeal falls to be dismissed by reason that the intended appeal is wholly lacking in merits.

24.As noted above, the Judge’s decision was sent to the last known address of the applicant and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal. 

25.In the circumstances, we reject the applicant’s explanation or reason for the delay in lodging the intended appeal.  

26.As to the substantive merits of the intended appeal, the applicant has not condescended to any or any sufficient particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and was, despite not having been afforded an opportunity to make oral submissions in the court below, rightly dismissed by the Judge. 

27.As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

28.Save for the apparent procedural error by the Judge, the applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.We have also subjected the Board’s Decision to anxious scrutiny and have found no reasonable basis for intervention.

29.In exercising afresh the court’s discretion, we are of the firm view that the applicant had failed to satisfy the threshold required for leave to apply for judicial review.  Due to its lack of merits, we would have refused to grant leave for the applicant to apply for judicial review.  The Leave Application was rightly dismissed.  

30.In the premises, there is clearly no prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The Summons filed on 1 March 2023 is accordingly dismissed.

The applicant acting in person