RE NAZIM MD ANOARUL

CAMP 494/2022

[2023] HKCA 149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 494 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1073 OF 2019)

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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 K W Lung (“Judge”)  dated 1 September 2022 refusing to grant leave for the applicant to apply for judicial review.  The intended judicial review was sought against the decision of the Torture Claims Appeal Board (“Board”)  dated 3 April 2019. In that decision, the Board dismissed the applicant’s petition against the decision of the Director of Immigration (“Director”)  dated 28 June 2018 rejecting his torture claim.

2.  On 20 October 2022, the Judge refused to extend time for the applicant to appeal against his decision.

Background

3.  The applicant is a national of Bangladesh, born in 1986.  He entered Hong Kong illegally and was arrested by the police on 1 December 2015.  Upon being referred to the Immigration Department, he lodged a torture claim by written representation on 5 December 2015.  His claim was based on the fear that, if returned to Bangladesh, he would be harmed by members of the Awami League (“AL”)  due to his membership of their political opponent, the Bangladeshi Nationalist Party (“BNP”).  The details of his claim are set out in paragraph 6 of the Director’s decision dated 28 June 2018.

4.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, torture risk,[1] BOR 3 risk,[2] persecution risk,[3] and BOR 2 risk.[4]  By notice of decision dated 28 June 2018, the Director rejected the applicant’s claim for non-refoulement protection. 

5.  The applicant appealed to the Board against the decision of the Director.  The Board held a hearing on 8 October 2018, at which the applicant gave oral testimony.  The Board recorded that the applicant claimed that he received telephone threats from AL members threatening that if he did not leave BNP, they would physically harm him.  In June 2015 four AL members assaulted the applicant with bamboo sticks.  After that, the applicant escaped to Fatullah.  He continued to receive threat calls but nothing happened before he set off for Hong Kong on 1 December 2015. The Board considered the applicant’s account of events to be credible, but noted that he was only an ordinary BNP member.  The low frequency and intensity of threat from the AL members indicated that they had no intention to severely harm or kill him.  The Board also found that there would be meaningful state protection available to the applicant, and that there were alternative places in Bangladesh where the applicant could relocate safely.  Accordingly, in its decision dated 3 April 2019, the Board dismissed the applicant’s appeal and affirmed the Director’s decision.

The Judge’s decisions in the court below

6.  On 23 April 2019, 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.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.

7.  Based on consideration of the documents alone, on 1 September 2022 the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out at [13] – [18] of the Form CALL-1 as follows:

“ 13. 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).

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

15. 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.’

16. There is no valid reason to challenge the Board’s Decision.

17. 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.

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

8.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), but took out a summons on 16 September 2022 to seek an extension of time to appeal against the decision of the Judge.  In his supporting affirmation, the applicant stated that he only got the decision on 15 September 2022 and did not have enough time to appeal.

9.  In his written decision dated 20 October 2022, the Judge dismissed the application as he considered that the applicant had not shown any reasonable prospect of success in his intended appeal.

The renewed application before this Court

10.  By summons filed on 25 November 2022, the applicant seeks an extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review.  In the summons and accompanying affirmation, the applicant simply stated he did not agree with the Judge’s decisions.

11.  In his written submissions lodged on 9 December 2022, the applicant stated that if he returned to Bangladesh he would be killed by his enemy, that the Judge was wrong not to apply “the principle of irrationality” and “the principle of procedural unfairness” to the Director’s and Board’s decisions, that the Judge reviewed the matter “lightly”, that the Board failed to give him a sufficient chance to arrange for relevant evidence, that the Board had relied on sources of news that were not officially recognized or were hearsay, and that the Board failed to assess whether there was a pattern of human rights violation in Bangladesh.

12.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we consider it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.  Pursuant to Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  The Judge recorded in his decision refusing to extend time that his earlier substantive decision dated 1 September 2022 had been sent on that date to the applicant’s last reported address.  The applicant had not advanced any reason or evidence that he only received the decision on 15 September 2022. Nevertheless, since the applicant was only one day late when he filed his summons for extension of time on 16 September 2022, we take the prime consideration to be the merits of his intended appeal.

14.  It is important for the applicant to understand that judicial review is not a further avenue for appeal from the Board.  Under the law, the Director and the Board are the decision-makers on the merits of his non-refoulement claim.  The court’s jurisdiction in judicial review is supervisory in terms of compliance with law.  An appeal to the Court of Appeal from a judge’s decision not to grant leave to apply for judicial review is not a further opportunity to re-argue the non-refoulement claim.  It is incumbent upon an appellant to identify and establish proper grounds of appeal showing reviewable errors in the judge’s decision.

15.  In the present case, the Board found that on the basis of the applicant’s evidence, there was no sufficient basis for his torture claim, because the evidence does not justify a finding of risk of harm of the requisite severity and also because of the availability of internal relocation as a viable option.  This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the reasons it had given in its 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, and irrationality in the ultimate decision.  The applicant has asserted some such public law grounds in a general way in his written submissions, but has wholly failed to particularise or substantiate them.  We do not think that the ultimate decision of the Board is one that was irrational in the sense that it was so unreasonable that no reasonable decision-maker could have arrived at it.

16.  The applicant has also failed to show how the Judge has erred in refusing to grant leave for judicial review.  Having considered the materials available, we share the Judge’s view that there is no reasonably arguable ground for judicial review. 

17.  We do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The applicant’s summons is accordingly dismissed.