RE SHAHAZADA ARMAN

CAMP 96/2023, [2026] HKCA 1231

On appeal from [2022] HKCFI 2746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 96 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 1108/2019)

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J U D G M E N T

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The Court:

1.  This is an application for extension of time to appeal against the decision of DHCJ K.W. Lung (“the Judge”) dated 6 September 2022[1] (“the JR Decision”, as contained in “the CALL-1 Form” dated the same) refusing leave to the applicant to apply for judicial review. 

2.  The applicant, had by a Form 86 filed on 25 April 2019 (“the Form 86”), sought leave to apply for judicial review (“the JR Application”) against the decision of the Torture Claims Appeal Board (“the Board”) given on 16 April 2019 (“Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) given on 31 August 2015 and 8 June 2017.

3.  In the supporting affirmation to the Form 86, the applicant 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.  Meanwhile, the Court clerk informed the applicant 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]-[5] 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 thereforearguable 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]; 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 in law.

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 addition to its determination of 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 as a visitor on 22 September 2005, but he overstayed and was arrested by the police on 4 June 2006.  On 8 June 2006, he lodged a torture claim, which was dismissed on 28 November 2012.  The applicant’s appeal to the Board was refused on 5 February 2013.  Subsequently, the applicant lodged a non-refoulement claim on 22 July 2013 (“NRF Claim”).

13.  The NRF Claim was based on a fear of being harmed or killed by Ponesh and members of the Bangladesh Nationalist Party (“BNP”) due to his refusal to join the BNP.  The details of the NRF Claim have been summarised by the Judge at [7] to [10] of the CALL-1 Form.

14.  By a Notice of Decision dated 31 August 2015 and a Notice of Further Decision dated 8 June 2017 (“Director’s Decisions”), the Director decided against the NRF Claim based on all applicable grounds other than torture, namely the persecution risk[2], the BOR2 risk[3] and the BOR 3 risk[4].

15.  The applicant appealed against the Director’s Decisions to the Board.  The Board conducted a rehearing of the NRF Claim on 7 November 2017, where the applicant appeared in person and gave evidence and answered the Board’s questions.  The Board made, inter alia, the following material findings:

(1)     The thrust of the applicant’s claim of fear of harm was that because he had refused to join the BNP, Ponesh (a member of BNP) and others would harm or even kill him (see [76] of the Board’s Decision).  He claimed that he had been threatened, and his father assaulted, by BNP members in Bangladesh (see  [22]). The Board rejected the occurrence of these events by reason that the applicant was an incredible witness (see [122]-[123]);

(2)     As regards the applicant’s contention that he was the subject of false allegations made to the police (see [34], [47], [50]-[66]) and the subject of water torture by the police (see [49]), these were all rejected by the Board as the evidential basis proffered by the applicant “inherently [lacked] credibility” (see [78]-[79]).

16.  By its decision dated 16 April 2019 (i.e. the Board’s Decision), the Board dismissed the appeal on all 3 applicable grounds for non-refoulement protection.  The Board took the view that the applicant had “invented the whole of the factual basis of his [NRF Claim]” (see Board’s Decision at [124]), and that the inconsistencies in the applicant’s evidence rendered the material bases of his NRF Claim and the alleged risk of harm incredible (see [79]).

The JR Decision

17.  By the Form 86, the applicant sought to judicially review the Board’s Decision, without setting out any grounds.

18.  In his supporting affirmation, the applicant requested that his application for leave to apply for judicial review be determined at an oral hearing.

19.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [20] to [26] of the CALL‑1 Form:

“20.      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).

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

22.      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.’

23.     The applicant has raised no valid reason to challenge the Board’s Decision.

24.     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.

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

CONCLUSION

26.     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

20.  The applicant’s last known address at the time of the JR Decision was at Lot 206, Yuen Kong Tsuen, Kam Sheung Road, Shek Kong, Pat Heung, Yuen Long (“the Lot 206 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 6 September 2022, which was returned undelivered and marked “unclaimed”.  

21.  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 JR Decision.

22.  The applicant thereafter took out a summons in the Court of First Instance on 12 October 2022 seeking extension of time to appeal, in which his address was stated to be at Lot 1605, Yuen Kong Tsuen 206, Kam Sheung Road, Pat Heung, Kam Tin (“the Lot 1605 Address”). He claimed that he did not receive the Court’s letter, thus he failed to lodge his intended appeal in time.  In his supporting affirmation filed on the same date, he stated that he disagreed with the “High Court Judgment”, but did not elaborate on what aspects of the JR Decision he disagreed with, nor the reasons for his disagreement.  

23.  By his decision dated 10 November 2022[5], the Judge extended time for the applicant to appeal for a period of 14 days from the date of his order.  A copy of the Judge’s decision dated 10 November 2022, as well as a copy of the CALL-1 Form, were forwarded to the applicant respectively on 10 and 11 November 2022 at the Lot 1605 Address.  Both letters were not returned undelivered. 

24.  By yet another summons filed on 28 December 2022, the applicant applied to the Judge for further extension of time to appeal, claiming that he did not receive the Court’s letters.  By the Judge’s decision dated 3 February 2023[6], the applicant’s application for further extension of time to appeal was dismissed.

25.  By a summons filed on 6 March 2023, the applicant renewed his application before this Court for an extension of time to appeal.  In the summons, he stated that he “failed to appeal as [he] did not get the High Court Letter on time”.  In his supporting affirmation filed on the same date, he merely stated that he did not agree with the “High Court Decision”.

26.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions on or before 20 March 2023.  The applicant is therefore debarred from lodging and relying upon any written submissions.

27.  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 JR Application on the papers in these circumstances.  In this case, we note that the Judge in his decision had nonetheless proceeded to determine the application on the papers (see [5] of the CALL-1 Form).

28.  This Court therefore directed that an oral hearing be fixed for the purpose of enabling the applicant to make submissions in support of the present application, as well as submissions he would have made to the Judge in support of the JR Application, had an oral hearing been fixed for that purpose.  The Board and the Director were excused from attendance at the hearing.

29.  We heard the application on 16 January 2024.  The applicant was absent at the hearing, and we have therefore proceeded to dispose of the present application based on the materials that have been lodged with the court by the applicant.

Discussion

30.  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 and decided to exercise the Judge’s discretion in respect of the JR Application afresh.

31.  Notwithstanding the lack of an oral hearing before the Judge, the applicant was in any event afforded an opportunity to make submissions to this Court at the hearing of the present application on 16 January 2024.  However, he did not avail himself of that opportunity, as he was absent at the hearing.  

32.  In the Summons and affirmation filed on 6 March 2023, 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.

33.  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.

34.  At the outset, we note that there was no cogent explanation provided by the applicant as to why he was late in lodging his intended appeal.  As noted above, after an extension of 14 days was granted by the Judge to the applicant (and such extension having been communicated to the applicant by unreturned post to the Lot 1605 Address), he nevertheless failed to lodge his appeal in time.  In the circumstances, there is clearly no reasonable explanation for the delay.

35.  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.

36.  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.

37.  Save 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.

38.  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.

39.  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 6 March 2023 is accordingly dismissed.