RE HASHEM SHIFAT

CAMP 47/2025, [2025] HKCA 703

On Appeal From [2024] HKCFI 3510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 47 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 379 OF 2020)

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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.  On 7 March 2025, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 27 December 2024 ([2024] HKCFI 3510)  (“the Leave Decision”)  refusing her application for leave to apply for judicial review.  On 27 February 2025, the Judge refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2025] HKCFI 421)  (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 19 June 2018 (“the Board’s Decision”)  confirming the decision of the Director of Immigration (“the Director”)  dated 30 December 2016 (“the Director’s Decision”)  rejecting the applicant’s 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.  She first arrived in Hong Kong to work as a foreign domestic helper on 19 July 2013.  Her employment contract was prematurely terminated on 15 October 2015 and she had overstayed since 30 October 2015.  The applicant was subsequently arrested by the police and later sentenced to imprisonment of 15 months on 31 March 2016.  By written representations respectively dated 30 May 2016, 31 May 2016 and 1 June 2016, the applicant made a non-refoulement claim on the basis that, if refouled, she would be harmed or even killed by her husband and Awami League members due to domestic dispute and political dispute respectively.  Details of the applicant’s claim were summarised by the Judge at [4] - [9] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  On 4 January 2017, she appealed against the Director’s Decision to the Board.  On 11 December 2017, the applicant attended an oral hearing before the Board.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s findings were concisely summarised by the Judge at [12] - [15] of the Leave Decision:

“12. The applicant appealed the Director’s Decision to the Board. On 11 December 2017, the Board conducted an oral hearing.

13. The Board found the applicant’s claim unconvincing and lacked credibility [47]. Although there might be some element of domestic violence from her husband, the Board considered that it did not amount to such intense physical violence that warranted any non-refoulement protection [48]. The Board also had great doubts that the applicant would attract adverse interest from AL as she was merely a grass-root JP supporter [49]-[50]. The applicant’s credibility was further undermined by the various discrepancies in her evidence and her delay in applying for non-refoulement protection [52]-[64].

14. The Board found the applicant’s claim was based solely on bare assertions/speculation and it was not accepted that she would face any risk of harm upon return to Bangladesh [65]-[69]. In any event, there were avenues to assist the applicant with her domestic violence problem [70]-[72] and that internal relocation would also be available [73]-[76].

15.  Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [34]-[42], [77]-[84]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.”

THE JUDGE’S DECISION

7.  On 11 March 2020, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to apply for judicial review against the Board’s Decision.  No ground was given in support of her application.  As the applicant failed to attend the oral hearing before the Judge on 27 November 2024, the Judge considered and determined her application on paper.

8.  By the Leave Decision, the Judge refused to grant the applicant leave to apply for judicial review. His reasons were stated at [18] - [23] of the Leave Decision:

“18. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

20. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:g

‘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.’

21. The applicant has raised no valid to challenge the Board’s Decision. There is no reason for the Court to interfere with the Board’s Decision.

22. The applicant fails to show that she has any realistic prospect of success in her intended judicial review of the Board’s Decision.

DISPOSITION

23.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

9.  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.

10.  On 14 January 2025, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, she was four days late with her intended appeal.  In her summons and supporting affirmation, she contended that she failed to receive the Leave Decision.

11.  On 27 February 2025, the Judge dismissed the applicant’s application, holding that the applicant had no valid ground to challenge against the Board’s decision and she failed to point out any error in the Leave Decision.  As there was no realistic prospect of success in her intended appeal, her application for extension of time to appeal was refused.

THIS APPLICATION

12.  By a summons and a supporting affirmation filed on 7 March 2025 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision and the EOT Decision. 

13.  In her summons, the applicant merely stated:

“I am not agree with the decision of the court because the decision maker did not consider my problem and did not concentrate on my application for the extension of time. As I have severe problem in my home country and I will be killed by my enemies.” (sic)

14.  In her supporting affirmation, the applicant reiterated that she failed to receive the Leave Decision and that her problem in her home country is very serious.  She also alleged that the Director and the Board refused her claim unreasonably but failed to give any particulars in support.

15.  Contrary to the directions of the Registrar of Civil Appeals dated 7 March 2025, the applicant failed to lodge any written submissions.

DISCUSSION

16.  Although the applicant sought to appeal also against the EOT Decision, in substance we will treat this to be an application to appeal out of time the Leave Decision.  See: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8].

17.  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.

18.  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].

19.  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)]).

20.  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 at [13].

21.  The applicant’s delay of four days is not insignificant.  She produced no evidence to support her bare allegation that she failed to receive the Leave Decision and the sealed court order.  As the Judge noted at [4] of the EOT Decision, the Leave Decision was sent to her last known address on 27 December 2024 and was not returned undelivered.  In any event, for present purposes, we will focus on the merit of her intended appeal.

22.  In our view, the present application is devoid of merit.  Her allegations are all vague, bare and general in nature.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, she fails to specifically identify any error in the Leave Decision.  Clearly, her assertions are not proper grounds of appeal.  The applicant fails to point out any error in the Board’s Decision and the Leave Decision on public law grounds.  Her intended appeal is a nonstarter.

23.  In any event, for completeness, we have considered the Leave Decision carefully and are unable to see any arguable grounds of appeal against the Leave Decision.  The Judge had considered the facts of her case in detail and we agree with the Judge’s observations.  There is plainly no basis to disturb the Leave Decision.

24.  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

25.  For the above reasons, the reapplication for extension of time to appeal is refused, and the applicant’s summons taken out on 7 March 2025 is dismissed.