MONDAL RIPON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 139/2025, [2026] HKCA 191

On An Intended Appeal From [2023] HKCFI 361 &

[2023] HKCFI 1174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 139 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 2815 OF 2018)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 25 July 2025, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge To (“the Judge”) dated 5 May 2023 refusing to grant him an extension of time to appeal against the Judge’s earlier order dated 10 February 2023 (“the Order”) refusing to grant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 19 November 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 23 March 2018.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Bangladesh. He claimed that he entered Hong Kong illegally on 1 January 2016, and was arrested by the police on the same date. On 7 January 2016, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by members of the Awami League (“AL”) because he was a supporter of another political party, the Bangladesh Nationalist Party (“BNP”), and was attacked by around 20 members of the AL in his shop in 2007 when he refused to join the AL and refused to accede to their demand for payment of protection money. Details of the Applicant’s claim have been summarised by the Judge at §§4-8 of the CALL-1 Form ([2023] HKCFI 361).

5.  By a Notice of Decision dated 23 March 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

6.  The Applicant appealed the Director’s Decision to the Board. On 19 November 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §§9-12 of the CALL-1 Form, as follows:

“[9] The Board found significant inconsistencies in the Applicant’s evidence which cast doubts on the reliability of his evidence. In his written claim, he alleged that the threatening calls stopped two years after his arrival in Dhaka (ie around 2009); but at the hearing, he implied that the calls continued right up until the moment he left Bangladesh in 2015.

[10] He also gave unclear and inconsistent evidence as to his reason for fleeing Bangladesh. He asserted that he fled Bangladesh because his assailants are still eager to find him and he was afraid that one day they would find him and harm him. As for the reason why his assailants were eager to do so, he said it was because AL is still in power, ie is the ruling party in Bangladesh. He was only a supporter of the BNP and not even a member. He did not have a profile since he left his village to cause him to be of continuing interest to the AL. The Board accepted that he might have been traumatised by the single attack on him in his shop in 2007, but that could not explain why after eight years of peaceful life in Dhaka, he still felt the need to flee the country in 2015. The Board considered that he was using the attack as ground for the purpose of claiming non-refoulement protection. The Board found the Applicant incredible. Hence, it was not satisfied that there was sufficient reliable and consistent evidence to show that the Applicant is at risk of harm for the reasons he claimed.

[11] The Board noted from authoritative and credible Country of Origin Information (‘COI’) that inactive members of the BNP who did not participate in any political activities were generally not targeted by the ruling AL party. It was the Applicant’s own evidence that he was fond of the BNP but was not even a member of the BNP and had not participated in any political activities in Bangladesh for many years. Hence, the Board assessed the risk of harm befalling on the Applicant at the hands of the AL from his locality or those in other localities to be very low.

[12] The Board further found that even if the Applicant faced any risk upon his return, the risk could be avoided or reduced by seeking state protection and internal relocation. According to the COI, internal relocation is permissible in Bangladesh. On the evidence, the Applicant had safely relocated to Dhaka for eight years before. The Board did not accept that his assailants would be able to leverage their connections with the AL to locate him outside his locality. With his skill as a carpenter and his previous experience living in Dhaka, it would not be unreasonable to expect him to move to Dhaka upon his return.”

7.  On 10 December 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In his supporting affirmation of the same date, the Applicant complained that the Board failed to consider the following matters:

“(1) the applicant was not educated.

(2) no lawyer was provided to him for advice.

(3) the Board did decide the case on assumption, even without considering many serious evidence provided.

(4) reversal the decision of the board and director of immigration as they both infer no case in absence of another evidence.” [sic]

THE JUDGE’S DECISION

8.  On 10 February 2023, the Judge gave a decision refusing to grant to the Applicant leave to apply for judicial review. The Judge’s analysis was set out at §§16-27 of the CALL-1 Form, which it is not necessary to repeat in this judgment. At §17 of the CALL-1 Form, the Judge gave his overall conclusion as follows: 

“This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the [Unified Screen Mechanism]; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant’s evidence incredible and rejected his evidence. It was on that basis that the Board found that he had failed to prove the factual basis in support of his claim to non-refoulement protection under any of the four applicable grounds under the USM. The Court could detect no error of law in the Decision. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province 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. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.”

9.  On 15 March 2023, the Applicant applied by summons for an extension of time to appeal against the Order. By then, he was over two weeks late to lodge his appeal. On 5 May 2023, the Judge refused the application, holding that the Applicant had not provided any reasonable explanation for his delay, and there was no prospect of success in his intended appeal ([2023] HKCFI 1174).

THIS APPLICATION

10.  By a summons taken out on 25 July 2025, the Applicant applies for leave to appeal out of time against the Judge’s order of 5 May 2023. In the summons, the Applicant states that he and his family still have problems in Bangladesh and it is not safe for him to go back there. He asserts that “[t]he point in [his] case was ignored and the decision were not transparent.” [sic]

11.  In his affirmation of the same date, the Applicant says that he is being targeted by the ruling party of Bangladesh for being a supporter of the BNP and also for being a Hindu, which is a minority religious group in Bangladesh where members of minority religious groups have been discriminated against and do not receive proper protection from the government. He claims that his family members were assaulted, ill-treated and looted in Bangladesh. He asks to be permitted to stay in Hong Kong until there is a fair election in Bangladesh.

12.  Attached to his affirmation are the following documents (“the Documents”) in support of his intended appeal:

(1)  a document purported to have been issued by a judge in Bangladesh and authenticated on 24 March 2025;

(2)  some screenshots of some news reports of unknown dates;

(3)  a news report dated 23 December 2024 showing essentially that there had been attacks on Hindus in Bangladesh over the years;

(4)  a news report purported to have been published in the South China Morning Post in January 2025, in which it was reported that there was tension between India and Bangladesh at that time due to India’s concerns that the rights of the Hindu minority were not safeguarded in Bangladesh;

(5)  the Hong Kong ID card of a man named Mujahid Ali;

(6)  a bank statement showing the balance of a bank account maintained by Mujahid Ali with a bank in Hong Kong as of 7 May 2025; and  

(7)  a four-page medical record covering the period from 14 August 2024 to 8 April 2025.

13.  In his written submissions lodged on 4 August 2025, the Applicant repeats what he stated in his supporting affirmation. He asks the Court of Appeal to grant him bail as he is currently being held under immigration detention.

DISCUSSION

14.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, at §§3-8, we shall treat the present application as a renewed application for an extension of time to appeal against the Order.

15.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

16.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

17.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).

18.  Further, the assessment of evidence, COI, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022, at §13.

19.  In the present case, the Applicant’s delay of over two weeks to apply to the Judge for an extension of time to appeal is substantial. As rightly pointed out by the Judge, the Applicant’s bare assertion that he did not receive the Order timely from his landlord is not a good or valid explanation for his delay. Further, there is a huge time gap of over 2 years after the Judge refused the Applicant’s application for extension of time to appeal before the Applicant made the present application. The Applicant has offered no good explanation for this further substantial delay.

20.  Turing to the merits of the Applicant’s intended appeal, the matters raised in the Applicant’s summons are vague and general, and cannot constitute any valid grounds of appeal against the Order.

21.  The assertions raised in the Applicant’s supporting affirmation and written submissions mostly relate to matters that fall within the province of the Board and the Director, but not to the Judge’s reasons for refusing to grant him leave to apply for judicial review. They likewise cannot constitute any valid grounds of appeal against the Order.

22.  His claim before the Board was primarily based on his political stance and also a monetary dispute between him and members of the AL, but not his religious belief or background. The claim that because he is a Hindu, a minority religious group in Bangladesh where members of minority religious groups have been discriminated against and do not receive proper protection from the government in Bangladesh, is a new allegation. There is no proper basis to permit the Applicant to rely on this new claim in the present application.  

23.  The Documents that the Applicant wishes to rely on are new evidence. However, the Applicant has not made any application for leave to adduce new evidence. In any event, the Applicant has failed to demonstrate how those documents (some of which are written in a foreign language) can assist his present application.

24.  Insofar as the Applicant seeks to rely on the Documents (or some of them) to support his claimed fear of harm in his home country due to his religious belief, as mentioned above, this new claim is irrelevant to the present application.

25.  Insofar as the Applicant seeks to rely on the Documents (or some of them) to challenge the Board’s Decision, in rejecting the Applicant’s non-refoulement claim, the Board found that the Applicant was not a witness of truth and his claimed risk of harm from members of the AL was exaggerated (see §76 of the Board’s Decision). Having considered the Applicant’s own evidence and the relevant COI, the Board considered that state protection would be available and internal relocation was a viable option open to him (§§69-74). We do not see that there is any error of law or procedural unfairness or irrationality in the Board’s Decision.

26.  The Applicant has failed to point to or show any error in the Judge’s decision of 10 February 2023, or raise any viable ground of appeal against the Order.

27.  There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

28.  The Applicant’s summons taken out on 25 July 2025 is dismissed.