RE ZAHIDUL ISLAM

CAMP 315/2023, [2025] HKCA 373

On Appeal From [2023] HKCFI 146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 315 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1889 OF 2018)

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J U D G M E N T

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

1.  By a summons filed on 28 September 2023, the applicant applied to this court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 12 September 2023. By that order, the Deputy Judge refused the applicant’s application for extension of time to appeal ([2023] HKCFI 2249)  (“the EOT Decision”)  against his earlier order dated 26 January 2023, refusing to grant extension of time and dismissing his application for leave to apply for judicial review ([2023] HKCFI 146)  (“the Leave Decision”).

2.  The intended judicial review was against the “decision” of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 13 March 2018, refusing to allow his late filing of notice of appeal/petition against the decision of the Director of Immigration (“the Director”)  dated 16 December 2016 (“the Director’s Decision”), refusing to reopen his non-refoulement claim.

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 (“the RHC”).

BACKGROUND

4.  The applicant is a national of Bangladesh.  He lodged a non-refoulement claim on 8 December 2013.  However, as the applicant failed to submit the completed supplementary claim form on or before 31 August 2016, the Immigration Department treated his application as withdrawn pursuant to section 37ZG of the Immigration Ordinance (Cap 115)  (“the Ordinance”)  on 5 September 2016.

5.  On 9 November 2016, the applicant wrote to the Immigration Department and requested to reopen his non-refoulement claim.  By way of the Director’s Decision, the Director refused to allow him to reopen his case.

6.  On 23 February 2017, the applicant appealed against the Director’s Decision to the Board.  By then, he was almost two months late in bringing his appeal.[1] The Board proceeded to determine on paper whether to allow the applicant’s late filing of his notice of appeal.

7.  By the Board’s Decision, the Board rejected his application.  Having considered the evidence, the Board refused to accept the applicant’s explanation that he was in prison and was without language assistance: [11].  The Board found that the applicant did not state he received the Director’s Decision late or that he was unable to access interpretation service: [10].  There were also no special circumstances to allow the late filing of his notice of appeal: [12].

8.  On 10 September 2018, the applicant filed a Form 86 dated 10 August 2018 to apply for leave to apply for judicial review against the Board’s Decision.  By that time, he was three months late in bringing his application.  No ground of review was provided in his summons or supporting affirmation.

THE JUDGE’S DECISIONS

9.  As the applicant did not ask for an oral hearing, the Judge considered his application on paper.  On 26 January 2023, the Judge refused to grant extension of time and dismissed his application for leave to apply for judicial review.  His reasons were stated at [10] - [20] of the Leave Decision:

“10. As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for 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 putative respondent if extension of time was granted. The deadline of his application is on 13 June 2018. The delay is about 3 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. However, I shall first consider the merits of the applicant’s case.

11. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

13. The question for this Court is whether the Board’s decision not to extent time for the applicant to file his notice of appeal is correct under the administrative law.

14. The Director refused his application because he had failed to submit the torture claim form as required under section 37Y(2). The relevant provisions of section 37Y are:

(1)  A claimant must, on written request by an immigration officer—

(b)  return the torture claim form so completed to an immigration officer at an address specified in the form, together with all documents supporting the claim that are readily available to the claimant when the form is returned.

(2)  The claimant must return the completed torture claim form in accordance with subsection (1)(b)—

(a)  within the period of 28 days after a written request under subsection (1)  is given to the claimant; or

(b)  within any further period that an immigration officer allows under subsection (3).

15. The applicant was also late in his filing of the notice of appeal with the Board and the Board had refused to extend time for him to do so, pursuant to section 37ZT of the Ordinance. On the face of it, the Board had not taken into consideration the merits of the applicant’s case, contrary to Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019. However, before the Board, there was no report from the Director as the applicant had failed to submit the completed torture claim form, in which he should have set out all the facts he relied upon in support of his application. Therefore, it was impossible for the Board to consider the merits of the applicant’s case.

16. The Board cannot be faulted for not having considered the merits of the applicant’s case. The law has now changed to the effect that the Board is not obliged to consider the merits of the applicant’s case if the applicant fails to file his notice of appeal within the time limit.

17. There is no valid reason to challenge the Board’s Decision.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision.

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

CONCLUSION

20.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14-day period.

11.  On 9 August 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was six months late in taking out his intended appeal.  In his affirmation, he merely contended that the Judge failed to seriously consider his application.

12.  By the EOT Decision, the Judge refused to grant extension of time to appeal to the applicant and dismissed his application.  The Judge held that the applicant was unable to raise any valid ground to challenge the Board’s Decision and was not able to show that there would be any realistic prospect of success in his intended appeal.

THIS APPLICATION

13.  By a summons and a supporting affirmation filed on 28 September 2023 to the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  No ground was put forth by the applicant in his summons or supporting affirmation.  He merely stated that he did not agree with the EOT Decision.

14.  Contrary to the directions of the Registrar of Civil Appeals dated 28 September 2023, the applicant failed to lodge any written submissions.

DISCUSSION

15.  Following the approach this court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

16.  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.

17.  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].

18.  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 is a fresh application for judicial review (see Nupur Mst at [14(6)]).

19.  Further, the assessment of evidence, country of origin information, 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.

20.  As the applicant’s delay of 6 months is very significant. The applicant fails to provide any reason, let alone a good reason, to explain his severe delay.

21.  In any event, the present application is a non-starter.  The applicant fails to point out any error in the Leave Decision or advance any proper ground of appeal.  Accordingly, 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 Leave Decision.

DISPOSITION

22.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 28 September 2023 is dismissed.