GOLAM KIBRIA v. TORTURE CLAIMS APPEAL BOARD

CAMP 72/2023

[2023] HKCA 467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 72 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 3473 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

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 Bruno Chan (“Judge”)  dated 12 January 2022 refusing to grant the applicant leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 1 November 2019. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 27 December 2018 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh born in 1978.  He last arrived in Hong Kong as a visitor on 26 March 2006.  However, he had overstayed since 18 April 2006 and was arrested by the police on 25 July 2006.  He made a torture claim on 31 July 2006. That claim was rejected by the Director on 17 August 2012, and on 26 October 2012 the applicant’s petition was rejected by the Petition Team of the Security Bureau.  On 4 March 2013, the applicant lodged a non-refoulement claim by way of written signification.  His claim is based on the fear that if he returns to Bangladesh, he will be harmed or killed by people from Awami League (“AL”)  and the Bangladesh Nationalist Party (“BNP”)  because he had refused to join the parties.

3.  The applicant’s non-refoulement claim was assessed by the Director with reference to all relevant risks (other than torture risk[1]), namely, BOR 3 risk,[2] persecution risk,[3] and BOR 2 risk.[4]  By a notice of decision dated 27 December 2018, the Director rejected the claim. 

4.  The applicant appealed to the Board against the Director’s decision.  A hearing was held before the board on 23 September 2019 at which the applicant testified despite an initial reluctance to do so.  In its decision dated 1 November 2019, the Board stated that it had formed the view that the applicant was not a witness of truth and that he had fabricated his claims in relation to his involvement in politics. The areas of the applicant’s evidence found by the Board to be problematic included that the applicant spoke only in general and non-specific terms about many aspects of his case, there were significant inconsistencies in his evidence and there were inherent improbabilities in this case.  The Board also found that a number of documents provided by the applicant were problematic. In the end, the Board rejected the applicant’s claims in their entirety and found that the applicant had never had any involvement in politics and had not been subjected to any threats, demands to join certain parties or any harm, and that he can safely returned to Bangladesh.  Accordingly, the Board dismissed the appeal and affirmed the decision of the Director. 

The Judge’s decisions in the court below

5.  On 25 November 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, without specifying any grounds in that form.  In the accompanying affirmation, the applicant simply asserted that the previous decisions disregarded the danger and threats he faced in his country if he returned there.

6.  On 22 December 2021, the applicant filed an affirmation in the Court of First Instance stating that he would withdraw his application for leave to apply for judicial review as his problem was solved in his country.

7.  Accordingly, on 12 January 2022, the Judge, considering the application on the basis of the documents alone, dismissed the application for leave to apply for judicial review.  The reasons were set out at [9] – [15] of the Form CALL-1 as follows:

“ 9. On 25 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he rejects the decision as it disregarded the danger and threats that he will face in his home country but without providing any details or elaborations as to how it did so or put forth any other proper ground for his intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 80 – 131 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

12.  The fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  Furthermore, the Applicant recently on 22 December 2021 filed an affirmation requesting to withdraw his application as his problem has been resolved in his home country.

15.  In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that his problem has already been resolved in his home country, I refuse to grant leave and accordingly dismiss his application.”

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).  Instead, over eight months later, on 7 October 2022, the applicant filed a summons in the Court of First Instance stating he wanted to appeal.  In his affirmation, he admitted he wanted to return and his family asked him to return to his country, but there was a “drama” in that his enemies wanted him to return so that they could kill him.  He asked for permission to appeal.

9.  The Judge heard the application on 2 February 2023, and handed down his decision in writing on 9 February 2023, refusing to extend time for appeal, on the ground that there was no good reason for the delay and there was no prospect of success in the intended appeal.

The renewed application before this Court

10.  By a further summons filed in this court on 15 February 2023, the applicant applied again for extension of time for him to appeal against the decision of the Judge refusing to grant leave for judicial review.  In the summons, the applicant stated that he failed to appeal as he did not get the court’s letter on time.

11.  In his written submissions lodged on 1 March 2023, the applicant states that his motherland is not safe for him, that his enemies will kill him, and that both AL and BNP are his enemies.  He says the High Court dismissed his leave application but he did not get the decision, and therefore seeks an extension of time.

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

Discussion

13.  The applicant’s delay of over eight months is a very substantial delay.  There is no good explanation for it.  In the circumstances, an extension should not be granted unless there are real prospects of success in the intended appeal. 

14.  In the present case, the application for leave to apply for judicial review was dismissed pursuant to the applicant’s own request to withdraw it.  There is nothing erroneous in the Judge’s decision to accede to the applicant’s own request for terminating his case.

15.  In any event, the Board, having heard the applicant, came to the conclusion that the applicant’s story was fabricated and that he in fact faced no risk of harm in his country.  This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the very detailed reasons it had given in its decision.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s 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, or irrationality in the ultimate decision.  The applicant has failed to establish any such public law grounds.

16.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to raise any grounds of appeal 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 merit in the underlying application for leave to apply for judicial review. 

17.  We do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.