RE UDDIN M NEZAM

CACV 177/2023, [2023] HKCA 1284

On Appeal from [2023] HKCFI 1448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 177 OF 2023

(ON APPEAL FROM HCAL 1243/2019)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

THE APPEAL

1.  This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 30 May 2023 (“Judge’s Decision”), refusing to grant the applicant an extension of time to apply for leave to commence judicial review proceedings and dismissing his application for leave.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 7 September 2018 (“Board’s Decision”) which affirmed the decision of the Director of Immigration (“Director”) given on 6 September 2017 (“Director’s Decision”), rejecting the applicant’s non-refoulement claim (“NRF Claim”).

BACKGROUND

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Bangladesh now aged about 34, is (1) a fear of being harmed or killed by supporters of the Awami League (“AL”) as he supported the rival Bangladesh Nationalist Party (“BNP”) and participated in demonstrations and rallies in support of former prominent figures of the BNP; and (2) a fear of being arrested or killed by the police in Bangladesh for false accusations concerning a “bomb blast case”.

3.  The circumstances giving rise to such alleged fears have been set out in detail in paragraph 7 of the Director’s Decision and paragraph 10 of the Board’s Decision and in gist in [1] to [5] of the Judge’s Decision embodied in the Form CALL-1 dated 30 May 2023[1] (“Form CALL-1”).

Entering and overstaying in Hong Kong and lodgment of NRF Claim

4.  The applicant entered Hong Kong illegally on 1 January 2016 and surrendered to the Immigration Department on 5 January 2016.

5.  He raised the NRF Claim by written representation on 18 August 2016.  He subsequently completed and lodged a non-refoulement claim form on 18 August 2017 (“NCF”).

Director’s Decision

6.  In processing the NRF Claim, in addition to the NCF, the Director’s representative(s) conducted a screening interview with the applicant on 30 August 2017.  The applicant then had legal advice and representation from the Duty Lawyer Service.

7.  The Director found the NRF Claim unsubstantiated under all applicable grounds for non-refoulement protection namely, torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].

Appeal to Board and Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board.

9.  The Board conducted a rehearing of the NRF Claim on 4 May 2018, which the applicant attended to testify before, and answer questions by, the Board with the assistance of an interpreter.

10.  The Board dismissed the applicant’s appeal on all 4 grounds for non-refoulement protection for the following reasons:

(1)  The applicant’s evidence on his alleged membership with the BNP was “inconsistent and implausible”.

(2)  The claim of his having been targeted for harm by supporters of the AL was incredible and thus unsubstantiated on the evidence.

(3)  His statement in the NCF that the police in Sylhet had questioned him, causing him to leave the city, was inconsistent with his evidence before the Board that he left Sylhet because he had difficulties in earning an income and in contacting his friends in the BNP.

(4)  Given such incredible and inconsistent evidence, the applicant was found not to have (i) been a member of the BNP; (ii) been named in a false police report nor involved in an ongoing court case; (iii) left Bangladesh in fear of harm from supporters of the AL; and (iv) been the subject of threats and targeting by the police or the Bangladesh authorities.

Application for leave for judicial review and Judge’s Decision

11.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 1243/2019 on 8 May 2019 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision, but without putting down any proposed ground for judicial review.  As his application was out of time by over 5 months, an extension of time for him to make the application was required from the court.

12.  In the supporting affirmation filed on the same day, the applicant merely attached a photocopy of the Board’s Decision, and claimed that he did not issue the Form 86 within time as he had been detained at the Castle Peak Bay Immigration Centre and could not afford legal representation.

13.  As the applicant did not request an oral hearing, the Judge determined his application on the documents filed with the court. 

14.  The Judge refused to extend time for the applicant to apply for leave to apply for judicial review and dismissed the application for leave for the reasons set out in [12]-[18] of the Form CALL-1:

“12. As the last day of the three-month period for his to file his Form 86 fell on 7 December 2018, the Applicant was therefore some 5 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13. In the Applicant’s case, a delay of 5 months must be considered as substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good or valid reason for his such serious delay.

14. As for the merits, if any, of her intended application, as noted above the Applicant has also failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality 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 merits in his intended application either.

15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16. 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 26 – 41 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.

17. The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.

18.  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.”

GROUNDS OF APPEAL

15.  By the notice of appeal filed herein on 9 June 2023, the applicant appealed against the Judge’s Decision on the following grounds:

(1)  “Ground 1” - He would face “hardship” if refouled to Bangladesh.

(2)  “Ground 2” - The Board had made groundless speculations as a result of relying on non-officially recognised or hearsay source of news and outdated cases.

16.  By the written submission lodged on 29 August 2023, the applicant first sought to contest the finding of fact by the Board, regarding his position and level of involvement in the BNP, in that the Board failed to accord sufficient weight to a certificate which, the applicant claims, confirmed his alleged role in the BNP. 

17.  Second, the applicant referred to ST v Director of Immigration (sic)[6] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531, R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514, Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his/her claim; and (4) that the court may interfere with the exercise of an administrative discretion on substantive grounds where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker.

18.  Lastly, the applicant cited s 37ZT of the IO, which we shall ignore.  The section is concerned with late filing of notice of appeal to the Board.  It can have no relevance to the processing of the NRF Claim as the applicant’s appeal against the Director’s Decision to the Board was made within time.

19.  The appeal was heard on 25 October 2023.  The applicant appeared in person.  He asked for permission to remain in Hong Kong until after the election in Bangladesh in March/April 2024. 

RELEVANT LEGAL PRINCIPLES

Court of First Instance’s role in judicial review in non-refoulement claims

20.  The primary decision-makers in a claim for non-refoulement protection are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeals against refusal of leave for judicial review in non-refoulement claim

21.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will not normally entertain any new arguments that are fact sensitive and should have been raised in the court below.  The Court of Appeal shall interfere if and only if the judge had erred in law or failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

DISCUSSION

22.  First, as noted in [11] and [12] above, the applicant had not, in either the Form 16 or the supporting affirmation, set out any proposed ground for judicial review.  It also follows that none of the matters now sought to be raised as grounds of appeal against the Judge’s Decision had been raised before the Judge.  That being the case, we do not see how the Judge can be faulted for refusing leave.  The appeal can be dismissed on this basis alone.

23.  In any event, neither the applicant’s notice of appeal nor submission shows any merits. 

24.  Ground 1 merely reiterates the applicant’s much repeated allegation that he would suffer hardship upon return to his home country.  The question whether the applicant would be at risk of life or torture upon being refouled to Bangladesh is a question of fact within the province of the Board (after the Director).  It is clear from paragraphs 30 to 41 of the Board’s Decision that the applicant’s claims of hardship was rejected essentially because the applicant’s evidence on material aspects of the NRF Claim was riddled with inconsistencies and thus incredible.  The Board’s analysis and the conclusions are, in our view, sound.  Ground 1 has no merit.

25.  Ground 2 also fails.  First, it targets the Board rather than the Judge.  Second, the applicant has not particularised the groundless speculations that he said the Board had made or pinpointed the news or cases that wrongly led the Board to such speculations.

26.  As for the written submission, the applicant made no attempt to elaborate on whether and, if so, how the trite principles referred to had not been applied in the processing of his non-refoulement claim by the Director or the Board or the disposal of his application for leave to apply for judicial review by the Judge.

27.  For completeness, we agree with the Judge’s comments at [13] of the Form CALL-1.  The applicant had failed to provide any or any sufficient explanation for the serious delay in lodging his Form 86.  The Judge was not provided with any detail of the period for which the applicant was detained at the Castle Peak Bay Immigration Centre, the facilities available to detainees to file documents, the steps the applicant had taken during (or had difficulty taking by reason of) his detention to make his application on time.

28.  In short, the applicant has failed to identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

29.  In any case, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

DISPOSITION

30.  For the above reasons, we see no basis for interfering with the Judge’s Decision.  The appeal is accordingly dismissed.