AKTER LAHMIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 101 /2025, [2025] HKCA 1143

On appeal from [2024] HKCFI 2826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 101 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 1959 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  On 16 October 2024, Deputy High Court Judge Reuden Lai refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement claim and dismissed the leave application[1].

2.  On 4 November 2024, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance.  The summons was dismissed by the judge on 10 January 2025 after a hearing on 18 December 2024[2].

3.  The applicant filed a summons with the Court of Appeal for extension of time to appeal against the judge’s decision of 10 January 2025.  This summons should be treated as a renewed application for extension of time to appeal against the judge’s decision of 16 October 2024 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.  The applicant is a national of Bangladesh.  She last entered Hong Kong on 14 February 2014 to work as a domestic helper.  She did not depart Hong Kong after her employment contract was terminated on 17 August 2014 and subsequently overstayed.  She was arrested by the police on 6 January 2015.  She lodged a non-refoulement claim on 10 January 2015 on the basis that her life will be in danger if she returns to Bangladesh as the members and supporters of the Awami League had threatened to kill her due to political dispute.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 9 October 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3] BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decision to the Board.  She attended the hearing before the Board on 6 May 2019. The Board found that the applicant had fabricated her claims in relation to her association with the Bangladesh Nationalist Party and the harm she suffered at the hands of the Awami League.  The Board considered that there is not a real risk that the applicant would face any proscribed forms of harm should she return to Bangladesh.  The Board decided that the applicant’s claims were not made out on any of the applicable grounds and confirmed the Director’s decision on 26 June 2019.

The intended judicial review

7.  On 11 July 2019, the applicant filed a Form 86 and an affirmation in HCAL 1959/2019 to seek leave to bring judicial review against the Board’s decision.  She did not put forward any grounds for her intended challenge in her application.

The judge’s decision

8.  DHCJ Reuden Lai dealt with the application on paper as the applicant failed to attend the hearing scheduled on 26 September 2024.  The judge held that there is no error of law in the Board’s decision or procedural unfairness at any stage of the non-refoulement proceedings.  As there is no realistic prospect of success in the proposed judicial review, the judge dismissed the leave application on 16 October 2024.

Grounds of appeal

9.  The applicant stated the following grounds of appeal in her present summons:

(1)     She does not agree with the court’s decisions as the court did not consider her applications for judicial review and extension of time to appeal properly;

(2)     She has serious problem in her country.  Her enemies are still looking for her and her life is not safe there.

10.  Her contentions in her written submissions may be summarised as follows:

(1)     The judge was wrong as a matter of law for not having applied the principle of irrationality to the decisions of the Director and the Board;

(2)     High standards of fairness are required in the determination of torture claims but the judge reviewed the matter lightly;

(3)     The judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the Director’s decision;

(4)     Her problems are very severe in her home country and she submitted all the proofs but the judge did not take greater care and disappointed her;

(5)     The judge did not analyse her claims properly in her home country;

(6)     The judge’s refusal was unreasonable;

(7)     The adjudicator failed to give her sufficient chance to arrange the relevant evidence;

(8)     She will face hardship if she goes back to her home country and the Board significantly relied on the source of news which is not officially recognised or is simply hearsay;

(9)     The adjudicator was irrational in failing to evaluate and make finding of fact as to whether there is a consistent pattern of gross and mass violation of human rights in her home country;

(10)     The adjudicator was irrational in failing to analyse and assess whether state protection exists in her home country and misdirected himself as to the extended meaning of state protection.  The police will not help her because she is not a political leader of the ruling party.

Analysis and disposition

11.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 16 October 2024 and the applicant was late by five days when she took out the summons at the court below on 4 November 2024.  She explained that she did not receive the order and judgment within 14 days[7].  Even if the court is minded to accept her explanation in view of the short delay, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[8].

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information 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.  The applicant confirmed at the hearing on 18 December 2024 before the judge that she did not find any error of law, procedural unfairness or irrationality in the Board’s decision[9].  Under these circumstances, the judge was correct in finding that the applicant did not have any valid reason to challenge the Board’s decision.  The judge’s decision is well founded. 

16.  Therefore, there is no prospect of success in the intended appeal.  We refuse to grant extension of time to appeal against the judge’s decision of 16 October 2024 and dismiss the summons filed on 27 May 2025.