RE AMIR MOLLA

CACV 337/2023, [2025] HKCA 401

On appeal from [2023] HKCFI 2503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 337 OF 2023

(ON APPEAL FROM HCAL 350/2020)

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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 appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”)  given on 12 October 2023 refusing to extend time for the applicant to apply for leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 8 November 2016 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 9 December 2014 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He illegally entered Hong Kong on an unknown date and was arrested by the police on 22 October 2008.  Thereafter, he lodged a torture claim on 25 October 2008, which was later treated and assessed as a non-refoulement claim. 

3.  The applicant’s claim was based on a fear of being harmed or killed by members of an underground party known as Purba Bangla Communist Party, as well as by the Bangladeshi police.  The details of the applicant’s claim have been summarised by the Judge at [3] and [4] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 9 December 2014 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered[2] the torture risk[3], the BOR 3 risk[4] and the persecution risk[5].

5.  The applicant appealed to the Board.  After a hearing on 29 April 2016, the Board dismissed the appeal on 8 November 2016 by the Board’s Decision.  The Board’s Decision covered all applicable grounds for non-refoulement protection (save the BOR 2 ground).  The Board found, inter alia, that the applicant’s evidence on material events giving rise to the alleged risk of harm was vague and largely “speculation”.  Accordingly, the Board found that the risk of harm against the applicant upon his return to Bangladesh was unsubstantiated.

The Judge’s decision

6.  The applicant filed a Form 86 (out of time)  on 9 March 2020 seeking to judicially review the Board’s Decision, without setting out any grounds for review.  In the applicant’s supporting affirmation, he stated:

“(1)  Information provided was [biased] and irrelevant.

(2)  Failed to determined my threat upon my return to my native country.

(3)   Judgment based on information provided was neglected.”

7.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to extend time for the applicant to apply for leave to apply for judicial review.  The Judge gave the following reasons in refusing to extend time at [11] to [24] of the CALL-1 Form:

“11.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 8 February 2017. The delay is more than 3 years. The applicant has given no explanation for his delay and his application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

12.  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).

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he understood the Board’s Decision. He asked the Court to consider his case carefully and also his health condition.

14.  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.’

15.  I am satisfied that the Board had done its best to notify the applicant that he was absent from the hearing and he was required to give written explanation for his absence under section 15 of Schedule 1A of the Ordinance. The burden is on the applicant to keep the Director and the Board updated of his address and he must bear the consequence if he fails to do so. In the circumstances, he was deemed to have received the Board’s notice.^[1] The Board was entitled to assess his appeal on the evidence and materials before it.

16.  This case is similar to Re Hidayah [2018] HKCA 595 Hon Chu JA and M Chan J, 14 September 2018, conducted by the same adjudicator where the Court of Appeal set aside the Board’s Decision for the reason that:

‘…There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. …’

17.  In this case, the Board had found the following facts:

‘33. It is not clear from the information provided by the Claimant in the TCF how his claimed membership with the so-called CHP is relevant to his application for non-refoulement protection and there are questions which the Claimant might have been able to clarify, had he appeared in the hearing. The information regarding his claimed activities as a member of the PBCP is vague and general in nature and much of the information is based on hearsay and speculation.

35.  It is incumbent upon the Claimant to establish that there is a real chance that he will suffer the ill-treatment which he fears if he is refouled to Bangladesh and that the feared ill-treatment would amount to persecution for a convention reason.

36.  I have been unable to determine the credibility of the Claimant’s assertions of fact in view of his failure to attend the hearing. In the absence of oral evidence from the Claimant, I am unable to determine, even to the low standard required, whether there is a real chance that, if he is refouled to Bangladesh, he would suffer ill-treatment as he fears or at all….’

18.  It is quite clear that the Board had doubts on the applicant’s evidence on the facts of his claim that he was a member with the CHP and for this reason, he was subjected to the alleged risks. The Board also had doubt on the applicant’s activities as a member of PBCP. Where the Board had doubts on those facts as alleged by the applicant in support of his claim, the Board might attach little or even on weight to such factual evidence given by the applicant. Without such factual basis, the Board would be quite right to say that the applicant failed to establish his claim on the alleged risks.

19.  I consider that the Board was entitled to make adverse finding on the applicant’s credibility of his factual evidence. Section 37ZD of the Ordinance provides, inter alia:

‘37ZD. Credibility of claimant

(1)   In considering a torture claim, an immigration officer or the Appeal Board may take into account, as damaging the claimant’s credibility, the following behaviour of the claimant—

(2)  other behavious: production of a false document as proof of claimant’s identity; failure to produce document required by immigration officer; failure to provide information; failure to attend an interview or provided information or answer any question; failure to make a full disclosure of the material facts or document; failure to comply with the Ordinance; and

(3)  any other behaviour.’

20.  The applicant had failed to comply with the Ordinance by updating his address with the Director and the Board and attending the hearing before the Board. He failed to attend the Board’s hearing without any valid reason or explanation.

21.  The Board had, therefore, found that there was no evidence to show that the applicant will be subjected to the risks as claimed if he returns to his country.

22.  There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

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

Grounds for appeal

8.  In the Notice of Appeal dated 25 October 2023, the applicant did not set out any grounds of appeal, but merely stated that he wished for this court to “quash [the Director’s Decision]” and to “have fresh determination of [his] case”.

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

10.  By a letter dated 10 October 2024, the applicant stated that he wanted to return to his country, and that he wished for his case to be withdrawn and “closed”.

11.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

12.  The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

13.  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.

14.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

15.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.