RE ISLAM MD ZAHIRUL

CAMP 161/2023, [2023] HKCA 947

On appeal from [2023] HKCFI 147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 161 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2086 OF 2018)

____________________

____________________

________________

JUDGMENT

________________

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge To (“the Judge”) dated 18 January 2023[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation together with a written submission to support his application.     

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decisions of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Bangladesh aged 56.  He entered Hong Kong illegally and was arrested by the police on 5 October 2012.  He later lodged a non-refoulement claim based on fear of being harmed or even killed by (i) the supporters of the Awami League (“AI”) because of his affiliation with the rival party, Bangladesh National Party (“BNP”); and (ii) a moneylender due to his failure to repay his debt.  The details of the applicant’s claim were set out in the first decision of the Director at [6] and summarised by the Judge at [5] to [11] of the Form CALL-1 dated 18 January 2023.  We will not repeat them.     

6.  By two decisions dated 24 September 2015 and 30 March 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds while the further decision took into account the BOR 2 risk^[5] ground.

7.  The applicant appealed the Director’s decisions to the Board.  The Board held an oral hearing on 29 November 2017, during which the applicant gave evidence and answered questions put by the Board.  By its decision dated 25 July 2018, the Board dismissed the appeal.  The Board found the applicant’s evidence about being harassed by the supporters of AL to be unsatisfactory and lacking in details, and did not accept his allegations.  As to the applicant’s evidence about threat of harm from the moneylender, the Board found that the moneylender only made oral threats but did not have intention to cause harm to the applicant of his family.  The Board also considered that the dispute with the moneylender was private in nature, and that neither the AL supporters nor the moneylender were state agents acting in an official capacity.  The Board concluded that the applicant failed to prove entitlement to protection under any of the applicable grounds.          

8.  On 2 October 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The applicant stated in his affirmation that he would be killed by the AL supporters and also the moneylender if he were to return to his home country.

9.  The Judge considered the application on paper.  By a Form CALL-1 dated 18 January 2023, he refused to grant the applicant leave to apply for judicial review.  He gave his reasons at [20] and [21] as follows:

“20. Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and quoted relevant precedents in support of its Decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notices. It correctly identified the factual and legal issues raised in the claims. The Applicant’s claims are founded on his fear of harm by the AL supporters and the Moneylender. The Decision of the Board was based on its assessment of the Applicant’s credibility and his risk of harm. The Board had carefully weighed the evidence and assessed the Applicant’s credibility. The Board found him incredible in respect of the allegations against the AL supporters. It accepted his evidence in respect of the threats from the Moneylender. It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.

21.  The Board’s Decision is a finding of fact which is 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 is utterly without fault. There are no errors of law in its Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board observed a very high standard of fairness. Its Decision did satisfy the enhanced Wednesbury test. Having considered his grounds for application, the Court was satisfied that the Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. For the above reasons, leave to apply for judicial review was refused.”

10.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. 

11.  By a summons filed on 8 February 2023, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with his application on paper, and by his decision handed down on 13 March 2023[6] refused the application. 

12.  Under Order 59 rule 14(3) of the Rules of the High Court, the applicant may within seven days from the Judge’s refusal make a renewed application to this Court for extension of time to appeal.  On 19 April 2023, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.  The summons was late by one month, for which no explanation has been given.

13.  By a Request for Dismissal of Appeal filed on 26 July 2023, the applicant requested a dismissal of this renewed application.

14.  In considering the renewed application to extend time for appealing against the refusal of leave to apply for judicial review, this 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. 

15.  The applicant was one week late when he made the application for extension of time to the court below. He explained in his affirmation that he did not receive the court’s decision in a timely manner.  In view of the relatively short delay, we will focus on the merits of the intended appeal.  

16.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. Relevantly, 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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  In neither the summons nor the supporting affirmation did the applicant provide any grounds for his intended appeal.  Similarly, in his written submission, the applicant only recounted his personal background and the basis and procedural history of his non-refoulement claim. 

18.  Given that the applicant has not provided any grounds to support his intended appeal, there is no basis for the Court of Appeal to interfere with the Judge’s decision. 

19.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success.

20.  In the circumstances, the applicant’s intended appeal does not have any prospect of success.  We also note that he has now requested for a dismissal of his application for extension of time to appeal.

21.  As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 19 April 2023.