MD MOAZZEM HOSSAIN v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 884/2020

[2025] HKCFI 3011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 884 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court

(1)  Form 86 be amended, naming the Non-refoulement Claims Petition Office as the Putative Respondent.

(2)  The application for leave to apply for judicial review be refused.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 12 May 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the Non-refoulement Claims Petition Office’s decision dated 16 April 2020 (“the Adjudicator’s Decision”), disallowing the late filing of his Notice of Appeal / Petition against the Director of Immigration’s decision dated 23 August 2018 (“the Director’s Decision”), which rejected his non‑refoulement claim on all applicable grounds other than risk of torture.

Background

2.  The background of this case, including the incidents alleged by the Applicant that he would be harmed or killed in Bangladesh and the immigration and procedural history, etc., was set out in the Adjudicator’s Decision. It is unnecessary to repeat them all over again here. For completeness’ sake, reference can be made to that decision, the hyperlink to which is included below[1]. Unless otherwise specified, the abbreviations and descriptions used by the Adjudicator are adopted herein.

Discussion

3.  I am not persuaded that the intended application for judicial review of the Adjudicator’s Decision is reasonably arguable with any realistic prospect of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

4.  When considering the Adjudicator’s Decision, I have reminded myself to apply the enhanced standard required by law in view of the seriousness of the issues involved (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14):

(1)  The Director’s Decision was sent to the Applicant’s legal representative on or around 23 August 2018. As found by the Adjudicator, there was no evidence to show that there was any delay on the Director’s part in sending that decision to the Applicant.

(2)  It was the Applicant’s responsibility to ensure that the Notice of Appeal / Petition was filed within time. The Applicant was however 11 months and 29 days late. The Adjudicator explicitly noted that the Applicant failed to provide any documentary evidence in support of his late filing of the Notice of Appeal / Petition.

(3)  Upon reviewing the Documents, the Adjudicator did not consider the Applicant’s non-refoulement claim to be meritorious, nor did she find any special circumstances warranting the exercise of discretion to extend time for the Applicant to file the Notice of Appeal / Petition. The Applicant’s allegation in the affirmation that the Adjudicator’s Decision was made “without any proper inquiry” or a “careful understanding” of the situation cannot be accepted.

5.  The Applicant has failed to identify in Form 86 any valid or justifiable grounds for judicial review of the Adjudicator’s Decision (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142), nor has he shown that the Adjudicator committed any public law errors or failed to maintain a high standard of fairness in the decision‑making process. It is insufficient for the Applicant to make vague accusations or complaints without providing evidence:

(1)  The Applicant has only made bare assertions against the Adjudicator regarding the “unlawful fetter of discretion”, yet it remains unclear how there could be any fetter where she clearly exercised her discretion in accordance with the law and took into account all relevant circumstances and factors available before her.

(2)  In addition, the Applicant alleges that the Adjudicator acted in “a procedurally unfair manner” in handling his case, but fails to specify or demonstrate why or how this was so.

(3)  The Applicant also merely accuses the subject decision of being “unreasonable or irrational”, etc., without providing any specific details to support that claim.

(4)  Furthermore, it is entirely unclear on what grounds the Applicant is asserting that the Adjudicator failed to exercise “greater care and duty” when he was acting in person.

6.  So far as the Applicant’s complaint in his affirmation that he was not provided legal advice is concerned, the Court of Appeal has held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribes that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings (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 Zafar Muazam [2018] HKCA 176).

7.  The Applicant also complains in his affirmation that his appeal was rejected without any oral hearing. However, as was held in ST v Betty Kwan & Ors [2014] 4 HKLRD 277, there is no absolute entitlement to an oral hearing; ultimately, it is a question of fairness, requiring consideration of the overall circumstances of the particular case. In the present case, the absence of oral hearing before the Adjudicator did not render the process unfair:

(1)  As indicated in the Director’s Decision, a screening interview was conducted with the Applicant on 1 August 2018. For present purpose, it is significant to note that the Applicant confirmed that, aside from what he had stated during or before the said interview, he had no additional information or documentary evidence to provide. It is clear that the Adjudicator took into account his interview records, along with other materials.

(2)  The Adjudicator did not make any adverse findings against the Applicant regarding his credibility (see Re Caswati [2018] HKCA 988). Rather, the Adjudicator’s findings in paragraphs 16 to 19 of her decision were based on the Applicant’s account: The essence of the Applicant’s claim was that he had “personal disputes” with Romel, which began in 2003. The Applicant moved away in 2004 to avoid Romel. Nothing “eventful” occurred in 2005 or 2006. The Applicant arrived in Hong Kong in 2006, but failed to submit a torture claim at his earliest opportunity, which was inconsistent with the behavior of someone fearing harm or death. Furthermore, the Applicant had not encountered Romel outside his village or in any other areas.

8.  The Applicant has not clearly identified which news sources he considers “not officially recognized” or “hearsay”, despite raising this as a complaint in his affirmation. Nor has he specified which cases he believes are “fairly outdated” in light of the “dramatic changes”. Furthermore, if the Applicant’s complaint were genuine, he should have addressed these matters in the Notice of Appeal / Petition intended to be submitted to the Adjudicator but he failed to do so.

9.  Lastly, the Court’s role in a judicial review is not to provide a further avenue of appeal. The Applicant’s assertion in the affirmation that there are “many more unacceptable and unexplainable grounds”, without any elaboration or evidentiary basis, serves no useful purpose. In the absence of any errors of law, procedural unfairness, or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh (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; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

Conclusion

10.  For the above reasons, the Leave Application is refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

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