RE MD JAHANGIR HOSSAIN

CAMP 522/2022, [2024] HKCA 287

on appeal from [2022] HKCFI 2582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 522 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 650/2019)

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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 KW Lung (“the Judge”) dated 19 August 2022[1] (“the JR Decision”, as contained in “the CALL-1 Form” dated the same date) refusing leave to the applicant to apply for judicial review.

2.  The applicant had, by a Form 86 filed on 7 March 2019 (“the Form 86”), sought leave to apply for judicial review (“the JR Application”) against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 24 January 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 11 November 2013, 9 August 2016 and 20 July 2017 (“respectively the Director’s 1^st, 2^nd and 3^rd Decisions”) rejecting the applicant’s non-refoulement claim.

3.  In the Form 86, the applicant, apart from setting out his grounds for judicial review, requested that an oral hearing be fixed for the determination of the JR 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 JR 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 and contrary to the Judge’s mistaken belief (at [2] of the CALL-1 Form), the JR Application had not been listed or fixed for hearing.

6.  By a letter dated 23 March 2022 to the applicant, the Judge’s clerk informed him of the following:

“We refer to your application for leave to apply for judicial review of the Torture Claims Appeal Board’s Decision. You requested an oral hearing.

However, due to the COVID-19 pandemic, we will try to avoid attendance in court unless it is not possible to do so.  Please submit your written submissions to court within 7 days from the date of this letter. However, if you are of the view that it is impossible to present your case on paper, you should inform the court immediately, stating the reasons. A hearing date will be fixed for you.  If the court does not receive response from you within 7 days from the date of this letter, the court will proceed to assess your case on paper.  A written decision will be sent to you at your last known address.”

7.  The applicant did not respond to that letter, and the Judge, purportedly invoking his discretionary and case management powers under O.1A r.1(b), O.1B r.1(1) and O.53 r.3(3) of the Rules, proceeded to determine the JR Application on the papers (see [2]-[4] of the CALL-1 Form).

8.  In this connection, this court has previously held that by reason of the clear wording of O.53 r.3(3) 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 JR Application on the papers.  It is therefore arguable that the Judge had erred in law and fact in determining the JR 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]; and Re Pervin Jahanara [2023] HKCA 1064 at [20].

9.  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 JR Decision on an erroneous basis.

10.  In the premises, notwithstanding that applications of this kind (such as the present renewed application for extension of time to appeal) are usually determined by this court on the papers, by reason of the aforesaid special circumstances of this case, this court on its own motion directed that a hearing be fixed on 16 January 2024 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 JR Application been fixed pursuant to his request.

11.  By reason of the problematic basis on which the JR Decision was reached by the Judge, this court will, in determining the present application for extension of time to appeal, exercise afresh the court’s discretion with respect to the JR 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.

Background to the applicant’s non-refoulement claim

12.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 20 August 2007, and was arrested by the police on the same day.  On 7 September 2007, the applicant lodged a torture claim, which was dismissed by the Director by a Notice of Decision dated 11 November 2013 (i.e. the Director’s 1^st Decision).  

13.  The applicant’s claim was based on a fear of being (i) harmed or killed by members of the Bangladesh Nationalist Party (“BNP”); and (ii) arrested and assaulted by the Bangladeshi police.  The details of the applicant’s claim have been summarised by the Judge at [6] to [7] of the CALL-1 Form.

14.  By a Notice of Decision dated 9 August 2016 (i.e. the Director’s 2^nd Decision), the Director decided against the applicant’s claim.  The Director’s 2^nd Decision covered the BOR 3 risk^[2] and the persecution risk^[3].  By a Notice of Further Decision dated 20 July 2017 (“the Director’s 3^rd Decision”), the Director also found against the applicant’s non-refoulement claim based on the BOR 2 risk^[4].

15.  The applicant appealed against the Director’s 1^st, 2^nd and 3^rd Decisions to the Board, for which an oral hearing was fixed on 31 August 2018.  The applicant was legally represented by the Duty Lawyer Service at the hearing.

16.  The applicant claimed that Anower Hossain (“AH”), his paternal cousin, who was also the General Secretary of the Awami League (a rival political party of BNP), was attacked by BNP members (see Board’s Decision at [26]-[34]), and that he was subsequently asked by the prosecution to appear as the sole prosecution witness in criminal proceedings against AH’s attackers (at [43]).  Thus, the applicant alleges, there is a risk of harm from those attackers. 

17.  On the evidence, the Board, by reason of the inconsistencies in the applicant’s evidence, rejected the occurrence of the attack on AH, as well as his alleged nomination as sole prosecution witness in the related criminal proceedings (see [104]).  The Board also found that on the evidence, the core of the applicant’s case was inherently implausible and lacking in credibility (see Board’s Decision at [91]). 

18.  The applicant’s appeal against the Director’s Decisions was therefore dismissed by the Board’s decision dated 24 January 2019 (i.e. the Board’s Decision).

The Judge’s decision

19.  By the Form 86, the applicant sought to judicially review the Board’s Decision, in which he requested that his application for leave to apply for judicial review be determined at an oral hearing, as well as setting out his grounds for review, which were summarised by the Judge at [16] of the CALL-1 Form, as follows:

“16.   In his affirmation in support of his application, the applicant said the Board’s Decision was wrong. It had taken into consideration source of news which are outdated, not officially recognized or simply hearsay, resulting in its speculation that he is safe to return to his country. The BOR 2 risk was assessed without screening process. The Board should have visited his country to understand the situation there itself.”

20.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused leave to the applicant to apply for judicial review.  The Judge gave the following reasons in refusing leave at [17] to [23] of the CALL-1 Form:

“17.   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).

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

19.  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.’

20.  Those grounds in paragraph 16 above are not valid reasons to challenge the Board’s Decision. There was no screening process for BOR 2 risk to be assessed because screen process had been done for the other risks. The other grounds are his bare assertions or opinions without any evidence in support. The Board can always rely upon the COI for the situation of his country without going there personally.

21.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

22.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

23.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The present application for extension of time to appeal

21.  The applicant’s address as stated in his Form 86 was at Ta Kwu Ling, Fanling, New Territories (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 19 August 2022, which was not returned undelivered.  

22.  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 of the Judge’s decision dated 19 August 2022.

23.  The applicant thereafter took out a summons in the Court of First Instance on 28 September 2022 seeking extension of time to appeal, in which his address was stated to be the Address.

24.  In the summons and his supporting affirmation filed on the same date, he claimed that he “did not get the High Court letter”.

25.  The applicant’s application to appeal out of time was dismissed by the Judge on 27 October 2022[5].

26.  By a summons filed on 8 December 2022, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and his supporting affirmation, the applicant repeated that he did not receive the CALL-1 Form on time and that he disagreed with the Judge’s decision, without elaboration.

27.  In his written submissions lodged on 22 December 2022, the applicant merely repeated the dangers he may face if refouled to Bangladesh, and that he disagreed with the decisions made in respect of his claim.

28.  We acknowledge that the applicant had in his 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 not open to the Judge to determine the leave application on the papers in these circumstances as he purported to do.

29.  This court therefore directed that an oral hearing be fixed for this application as explained in [10] above.  The Board and the Director were excused from attendance at the hearing.

30.  We heard the application on 16 January 2024.  The applicant appeared in person at the hearing, and through the assistance by an interpreter, he confirmed that he had nothing to add to the matters already stated in the documents lodged with the court.

Discussion

31.  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 the applicant’s JR Application afresh.

32.  Thus, notwithstanding the lack of an oral hearing before the Judge, the applicant was afforded an opportunity to make submissions to this court at the hearing of the present application on 16 January 2024.

33.  In the Summons and affirmation filed on 8 December 2022, as well as in his written submissions, the applicant did not rely on the lack of an oral hearing for the JR 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 JR Application.

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

35.  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.

36.  There is no explanation on the part of the applicant as to how and when he had come to learn of the Judge’s decision dated 19 August 2022.

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

38.  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 rightly dismissed by the Judge. 

39.  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.

40.  Save for the apparent procedural error by the Judge (which we have dealt with above), 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.

41.  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 JR Application was rightly dismissed.

42.  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 8 December 2022 is accordingly dismissed.