RE ISLAM ZOHURUL

CAMP 251/2021

[2021] HKCA 1530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 251 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2173 of 2018)

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J U D G M E N T

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Hon Chu JA (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 Bruno Chan (“the Judge”)  dated 15 September 2020 refusing his application for leave to apply for judicial review.

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

3.  The applicant has filed an affirmation and lodged a written submission in support of his application.   

4.  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 applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

5.  The applicant is a national of Bangladesh aged 33.  He entered Hong Kong illegally and surrendered to the Immigration Department on 25 November 2015.  He later raised a non-refoulement claim based on fear of being harmed or killed by members of Awami League (“AL”)  because of his political affiliation with Islami Chattra Shibir (“ICS”).  The details of the applicant’s claim were set out in the Director decision dated 29 December 2017 at [6] and the Board’s decision dated 3 August 2018 at [6] to [9].  We will not repeat them.    

6.  By his decision, the Director rejected the applicant’s claim on the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant’s appeal against the Director’s decision to the Board was heard at an oral hearing on 4 May 2018.  By its decision, the Board dismissed the appeal.  The Board noted that the applicant’s oral evidence given at the hearing was substantially different from his account given to the Director, and he had no idea of the nature and activities of the ICS.  The Board found the applicant failed to establish any of the facts he asserted and that he faces any real risk of harm.  The Board concluded that he is not entitled to non-refoulement protection on any of the appliable grounds.

8.  On 10 October 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decisions.  The applicant did not provide any grounds for seeking relief.  He only stated in the supporting affirmation that he feared he would be harmed or killed by his political opponents.   

9.  The Judge heard the application at an oral hearing.  By a Form CALL-1 dated 15 September 2020[5], the Judge refused the application as he was not satisfied that the intended judicial review has any prospect of success.  His reasons are encapsulated at [12] to [14] as follows: 

“12.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 21 – 31 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

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 order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 29 September 2020.

11.  By a summons filed on 1 December 2020 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application at a hearing on 20 April 2021, and by his decision dated 6 May 2021 dismissed the application[6]. 

12.  Under Order 59 rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 13 July 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  The application is late by two months.

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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. 

14.  The applicant was late by about two months when he filed the 1 December 2020 summons, which is a substantial delay.  In the application before the Judge, the applicant explained that there was delay in receiving the Form CALL-1 because he had moved home.  We agree with the Judge that he should have informed the Court of the change in his address. We do not find the delay satisfactorily explained.    

15.  As for 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].

16.  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 the present application, the applicant had not provided any grounds to support his application in the summons and supporting affirmation. 

18.  In the written submission, the applicant complained that the Board’s only objective was to dismiss his claim, and the success rate of appeals to the Board was zero.   

19.  We are of the view that the applicant has not put forward any viable ground for his intended appeal. There is no evidence before us to support the complaint made in the written submission against the Board.   Critically, the applicant has not identified any error in the Judge’s decision that warrants interference by this Court.  

20.  We have also examined the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  We agree that the intended judicial review has no reasonable prospect of success.  The Judge was correct in refusing leave to apply for judicial review.

21.  As the applicant’s intended appeal against the Judge’s dismissal 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 summons filed on 13 July 2021.