RANA MD SHOHEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 236/2024, [2025] HKCA 216

On Appeal From [2024] HKCFI 2517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 236 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 552 OF 2023)

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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 To (“Judge”) dated 23 September 2024[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 28 March 2023. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 7 September 2021 rejecting the applicant’s non-refoulement claim.

Background

2.  The Applicant is a Bangladeshi national, now aged 38. He is married. He entered Hong Kong illegally on 5 March 2020 and was arrested by the police on 24 November 2020. The applicant made a non-refoulement claim on 28 November 2020. The claim was made on the basis that, if refouled, because of his affiliation with the Bangladesh Nationalist Party, he would be harmed or even killed by four members of the rival political party, Awami League.

3.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] By a notice of decision dated 7 September 2021, the Director rejected his claim.

4.  The applicant appealed to the Board against the Director’s decision. The Board held an oral hearing of the appeal on 14 February 2023, during which the applicant gave evidence and answered questions from the Board. In its decision dated 28 March 2023, the Board found the applicant’s account dubious and implausible, while his knowledge about politics in Bangladesh was incompatible with someone who claimed to be politically active. The Board was not prepared to give any credence to any material facts in the applicant’s evidence. Even assuming the applicant’s factual account was accepted, the Board found there was no real risk for the applicant given the low intensity and frequency of the past threats and the low-level profile of the applicant. Furthermore, state protection would also be available and internal relocation would be an option. Accordingly, the Board dismissed the appeal and affirmed the decision of the Director.

The Judge’s decisions in the court below

5.  On 6 April 2023, 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. The grounds for judicial review as provided in his supporting affirmation were set out in [14] of the Judge’s decision dated 23 September 2024 as follows:

“ (1) The Board did not consider his claim;

(2) The Board did not understand the document submitted by him;

(3) The Board did not give him time to translate documents into English;

(4) The translator was not helpful;

(5) The interpreter was not helpful.”

6.  An oral hearing was scheduled on 13 September 2024, for which the applicant was absent. On 23 September 2024, the Judge issued his decision refusing to grant the applicant leave to apply for judicial review. The Judge found that all the grounds in the applicant’s affirmation were bare assertions lacking in particulars. Regarding (2) and (3), given that the applicant was legally represented in preparing his non-refoulement claim form and in attending the screening interview, his lawyer should have already included any relevant documents. Accordingly, the Judge concluded in [28] of his decision that:

“ 28. … the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board had studied the relevant COI and carefully tested the Applicant’s evidence against the COI. It found the Applicant incredible and rejected almost the entirety of his case. It was on that basis that the Board found he had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. These are finding of facts and of law. Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.”

7.  On 21 October 2024, 14 days after the expiry of the 14-day limit for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant made an application for leave to appeal out of time the Judge’s decision dated 23 September 2024. In his supporting affirmation, he asserted that he was late because he had never received that decision.

8.  To assist the applicant in presenting a proper application for extension of time to appeal, he was directed to file an affirmation or statement to set out (i) the reason for his delay; (ii) when and the circumstances under which the Judge’s decision of 23 September 2024 was brought to his attention and (iii) the grounds of his intended appeal. On 5 November 2024, the applicant lodged a 2-page hand-written letter, in which he simply reiterated that he did not receive the decision and that his life would be in danger upon return to Bangladesh.

9.  On 22 November 2024, the Judge dismissed the applicant’s application for extension of time to appeal. The Judge considered that the applicant’s claim about not receiving his decision of 23 September 2024 was a bare assertion as it was sent to his last known address without being returned undelivered. In any event, the Judge did not find any realistic prospect of success in the applicant’s intended appeal and considered that his application was an abuse of process.

The renewed application before this Court

10.  By summons filed on 3 December 2024, the applicant made an application to this Court for leave to appeal the Order of the Judge dated 22 November 2024 out of time. We shall treat this as a renewed application for extension of time to appeal against the Judge’s decision dated 23 September 2024, which refused the applicant leave for judicial review.

11.  In his summons and supporting affirmation, the applicant alleged that the Court did not consider his application properly and repeated that his life would be in danger upon return to Bangladesh.

12.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 3 December 2024. Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.  The applicant was late for 14 days when he filed his initial summons on 21 October 2024. He stated that the delay was due to his failure to receive the Judge’s decision of 23 September 2024. We do not accept such explanation given that the said decision was sent to his last known address without being returned undelivered. Nonetheless, having regard to the relatively short delay, we are prepared to focus on the merits of his intended appeal.

14.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

15.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. The Board had heard the applicant and assessed his evidence providing detailed reasons. The Board rejected the applicant’s non-refoulement claim because it rejected the applicant’s account as dubious and implausible, and found there was no real risk of the requisite level of harm upon return even on the applicant’s own factual case. In any event, state protection would also be available and internal relocation was a viable alternative. The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

16.  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 decision. The applicant has failed to establish or even identify any such public law grounds.

17.  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 advance any grounds to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review.

18.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused. The applicant’s summons dated 3 December 2024 is accordingly dismissed.