RE ISLAM SHEIKH NAZRUL

CAMP 352/2022, [2024] HKCA 285

On appeal from [2022] HKCFI 1526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 352 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 936/2019)

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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 application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 2 August 2022[1] (“the EoT Decision”) refusing to extend time for the applicant to appeal against his decision dated 8 June 2022[2] (“the JR Decision”, as contained in “the CALL-1 Form” dated the same date) refusing leave to the applicant to apply for judicial review.

2.  The applicant, had by a Form 86 filed on 8 April 2019 (“the Form 86”), sought leave to apply for judicial review (“the JR Application”) against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 7 March 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 23 July 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  In the Form 86, the applicant, apart from setting out his grounds for judicial review, 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.  By a letter dated 3 March 2022 to the applicant, the Judge’s clerk informed him 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 therefore arguable 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]; and 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.

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 determining 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 illegally on 1 December 2015, and was arrested by the police on 1 December 2015.  On 5 December 2015, the applicant lodged a non‑refoulement claim.

13.  The applicant’s claim was based on a fear of being harmed or killed by members of the Awami League (“AL”) by reason of his involvement in the activities of an opposition political party, the Bangladesh Nationalist Party (“BNP”).  The details of the applicant’s claim have been summarised by the Judge at [6] to [7] of his decision (“the CALL-1 Form”).

14.  By a Notice of Decision dated 23 July 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[3], the BOR 3 risk^[4], the persecution risk^[5] and the torture risk^[6].

15.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was fixed on 7 December 2018. The applicant appeared at the hearing in person.

16.  The Board made the following material findings of fact based on the evidence filed and the live evidence given by the applicant at the hearing:

(1)  as regards the alleged assault and attack by AL members in the applicant’s home village (being an assault which took place in May 2013 and an attack by the AL with petrol bombs and hand grenades – both related to the convening of and the applicant’s participation in BNP rallies), they were not based on any personal grudge between him and any AL member, but were general attacks (some of terrorism) by AL on a group of BNP supporters (see [56]-[57], Board’s Decision);

(2)  as a matter of fact, the evidence does not support the applicant’s assertion that he had been threatened and assaulted by AL members in his home village, or that there is a genuine risk of harm against him in Bangladesh (see [70]);

(3)  having left his home village in July 2013 for Shariatpur, and subsequently Dhaka, there was no evidence that AL members were still trying to locate him (see [58]-[62]).

17.  Thus, the Board found, inter alia, that the applicant’s evidence relating to the facts on which his claim was based was “questionable and unreliable” (see Board’s Decision at [70]).  In any event, the Board took the view that state protection and suitable options of internal relocation were available to the applicant in order to lower the risk of harm, if any.  Specifically, the Board took into account the following matters:

(1)  the applicant only made one report of the alleged assaults by AL members to the police, but failed to follow up on the report, nor did he attempt to make reports to other police stations (at [75]);

(2)  there was objective Country of Origin Information which suggested that the applicant had other avenues of complaint, such as the Police Internal Oversight of Bangladesh, to which he did not attempt to lodge a report (at [75]);

(3)  the law of Bangladesh permits internal relocation, and should the applicant relocate to a city such as Dhaka (the capital and largest city in Bangladesh), the risk of harm (if any) would be minimised or lowered (at [38] & [76]).

18.  The applicant’s appeal was therefore dismissed by the Board’s decision dated 7 March 2019 (i.e. the Board’s Decision).

The Judge’s decision

19.  By the Form 86, the applicant sought to judicially review the Board’s Decision, in which he requested that his application for leave to apply for judicial review be determined at an oral hearing, as well as setting out his grounds for review, which were summarised by the Judge at [14] of the CALL-1 Form, as follows:

“(1) The hearing bundle was given to him shortly before the appeal hearing, so he did not have sufficient time to prepare for the hearing and he was confused at the hearing. The documents are in English and he did not have interpreter’s service. He had answered the questions from the Board honestly, but his credibility was found questionable.

(2) He was not given a chance to make reply submission in response to the submissions made by the representatives of the Director.

(3) The Board is in breach of procedural fairness because:

i. it had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that he did not satisfy the requirements;

ii. the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

iii. the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or are/a result of procedural errors or unfairness;

iv. the Board failed to meet the greater care and duty owed to a self-represented claimant.

(4)  The Board had relied upon the source of news which is not officially recognized or it is simply hearsay. It had also relied upon some cases which are fairly outdated, which resulted in them making groundless speculations that it is safe for him to return to his country.”

20.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused leave to the applicant to apply for judicial review.  The Judge gave the following reasons in refusing leave at [15] to [23] of the CALL-1 Form:

“15.  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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

17.  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.’

18.  For the reasons below, those grounds above are not valid reasons to challenge the Board’s Decision.

19.  There is no record that the applicant had told the Board that he was not given sufficient time to prepare his case and asked for an adjournment of the hearing. Nor was there any record that he was confused at the hearing. He said that he had answered all questions put to him by the adjudicator, which shows that he understood what was going on in the hearing. The Court of Appeal in Re: Sattar Abdul [2019] HKCA 613 held:

‘13. … it is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].’

20.  Ground (1) fails. Ground (2) fails because the Director was not legally represented at the hearing. Grounds (3) and (4) are his bare allegations, opinions or comments without any evidence in support.

21.  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.

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

CONCLUSION

23.  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

21.  The applicant’s address as stated in his Form 86 was at Tsim Sha Tsui Mansion, Nos.83-97 Nathan Road, Tsim Sha Tsui (“the 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 8 June 2022, and were not returned undelivered.  

22.  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 Judge’s decision dated 8 June 2022.

23.  The applicant thereafter took out a summons in the Court of First Instance on 30 June 2022 seeking extension of time to appeal, in which his address was stated to be the Address.

24.  In the summons and his supporting affirmation filed on the same date, he claimed that he did not receive “the order and judgment within 14 days”. 

25.  The applicant’s application to appeal out of time was dismissed by the Judge on 2 August 2022 (i.e. the EoT Decision).

26.  By a summons filed on 15 September 2022, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and his supporting affirmation, the applicant sought an extension of time to appeal against the decision given by the Judge on “2 August 2022”, being the EoT Decision.  Although in his summons the applicant purported to appeal against the EoT Decision, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision, i.e. the JR Decision, by which leave for judicial review was refused.

27.  In his written submissions lodged on 29 September 2022, the applicant merely referred to the well-established principles in ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

28.  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 leave application on the papers in these circumstances as he purported to do.

29.  This court therefore directed that an oral hearing be fixed for the present application, as explained in [10] above.  The Board and the Director were excused from attendance at the hearing.

30.  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

31.  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 the JR Application afresh.

32.  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, notwithstanding that he was absent at the hearing.

33.  In the Summons and affirmation filed on 15 September 2022, as well as in his written submissions, 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.

34.  For the following reasons, we are of the view that despite the procedural irregularity, the present application for extension of time to appeal falls to be dismissed by reason that the intended appeal is wholly lacking in merits.

35.  As noted above, the JR Decision was sent to the last known address of the applicant and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the JR Decision within the period he was permitted to lodge the intended appeal.

36.  There is no explanation on the part of the applicant as to how and when he had come to learn of the JR Decision.

37.  In the circumstances, we reject the applicant’s explanation or reason for the delay in lodging the intended appeal.

38.  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 was, despite not having been afforded an opportunity to make oral submissions in the court below, rightly dismissed by the Judge. 

39.  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.

40.  Save for 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.

41.  We are unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

42.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the processing of his non-refoulement claim.

43.  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.

44.  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 15 September 2022 is accordingly dismissed.