KHAN OLIUR RAHMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 7/2022, [2023] HKCA 1060

On Appeal From [2020] HKCFI 1758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 7 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1738 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) dated 31 July 2020 refusing leave for the applicant to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“Board”) dated 10 August 2018.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 27 January 2017 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh born in 1988.  He was arrested on 18 August 2014 after entering Hong Kong illegally.  On the next day he lodged a claim for non-refoulement protection, on the basis of the fear of being harmed or killed by members of a rival political party, the Awami League.  The details of his claim are set out at [6] to [11] of the Board’s decision.

3.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4]  By a notice of decision dated 27 January 2017, the Director rejected the claim. 

4.  The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 20 June 2018, at which the applicant gave evidence and answered the Board’s questions.  The Board noted that the applicant’s account was “extremely vague” despite repeated questioning, and was inconsistent with his previous version on material points.  The Board considered that the problems with the documentations produced, coupled with the “complete inability” of the applicant to give any reasonable information of their provenance, led to the conclusion that they were unreliable.  The Board concluded that “no credence whatsoever” could be attached to any of the applicant’s claims and statements, and that he had failed to establish any real risk of harm.  Accordingly, in its decision dated 10 August 2018, the Board dismissed the appeal and affirmed the decision of the Director. 

The Judge’s decisions in the court below

5.  On 24 August 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  In the form, the applicant said he had given many documents as proof but the Board disregarded his case and made a wrong decision.

6.  The Judge, having considered the application on the basis of the documents alone as there was no request for an oral hearing, issued his decision on 31 July 2020, refusing to grant leave to apply for judicial review.  The reasons were set out at [14] – [18] of the Form CALL‑1 as follows:

“ 14. It is obvious that the Board had rejected all the facts in support of his application. As such, he has no factual basis for his claim.

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

‘ 13. … …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.’

16. The grounds that he has raised in support of this application are his opinions without any evidence or specifics in support of them. The Board had made enquiry and given its reasons for its finding of the facts of his case.

17. There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

18. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

7.  The applicant did not appeal within the period of 14 days prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A). Instead he filed a summons in the Court of First Instance on 5 October 2020 seeking an extension of time to appeal, without setting out any intended grounds of appeal.  In the supporting affirmation he said he did not get the court’s decision.

8.  The application was dismissed in the Judge’s decision of 4 November 2021 on the ground that the applicant had failed to show any prospect of success in his intended appeal.

The renewed application before this Court

9.  By summons filed in this court on 6 January 2022, the applicant made another application for extension of time to appeal against the decision of the Judge refusing to grant leave for judicial review.  He did not set out any explanation for the delay or any intended ground of appeal against the substantive decision of the Judge.

10.  The applicant has not to date lodged any written submissions for the present application, contrary to the directions of the Registrar of Civil Appeals.

11.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  The applicant was late by 3 weeks (excluding August 2020, being the court vacation) when he filed an application for extension of time below on 5 October 2020.  The more important consideration is whether his intended appeal has any prospect of success.

13.  Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  In the present case, the Board rejected the applicant’s non-refoulement claim because the Board found his account incredible given the numerous deficiencies explained in its written decision.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law errors, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish or even identify any such public law ground.

14.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in refusing to grant leave for judicial review.  Having considered the materials available, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review. 

15.  We do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.