RE MOHAMMED ABDUL JALIL

CAMP 270/2023, [2025] HKCA 414

On an intended appeal from [2022] HKCFI 870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 270 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 2411/2019)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”) dated 26 October 2022 refusing to extend time for the applicant to appeal against his decision dated 24 March 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 24 February 2017 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 1 December 2014 rejecting the applicant’s non-refoulement claim (“the Director’s 1^st Decision”).

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 24 November 2007, and was arrested by the police on 10 March 2008.  Thereafter, he lodged a non-refoulement claim by way of a written signification dated 29 March 2008.

3.  The applicant’s claim was based on a fear of being harmed or killed by the local police and members of the Bangladesh Nationalist Party due to a political dispute.  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of his decision (“the CALL-1 Form”)[1].

4.  By the Director’s 1^st Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], persecution risk[3] and the BOR 3 risk[4].  By a Notice of Further Decision dated 21 April 2017 (“the Director’s 2^nd Decision”), the applicant’s claim based on the BOR 2 risk[5] was also dismissed.

5.  The applicant appealed to the Board against the Director’s 1^st Decision (but not the Director’s 2^nd Decision).  After a hearing on 12 July 2016, the Board dismissed the applicant’s appeal by its Decision.  In dismissing the appeal, the Board found inter alia that much of the applicant’s evidence in support of material events to his claim (on which his alleged fear of harm was based) was based on speculation.  In any event, adequate state protection and suitable options of internal relocation were available to the applicant to lower the risk of harm, if any.

The Judge’s decision

6.  The applicant filed a Form 86 (out of time) on 20 August 2019, seeking to judicially review the Board’s Decision, without setting out any grounds for review.  In his supporting affirmation, the applicant contended that the relevant authorities have, in the processing of his claim, failed inter alia to consider the threat against him upon his return to his country.

7.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to extend time for the applicant to apply for leave, and accordingly refused leave for the applicant to apply for judicial review.  The Judge gave the following reasons in refusing leave at [14] to [20] of the CALL‑1 Form:

“[14]  In the Applicant’s case, a delay of more than 2 years must be considered as extremely substantial and inordinate, for which the Applicant did not provide any reason or 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 fail to find any good or valid reason for his such serious delay.

[15]  As for the merits of his intended application by reference to those proposed grounds put forward by the Applicant as stated above, they are just vague and bare assertions of his without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Board had erred in their decisions, or how did they neglect the information provided by him or fail to determine his claimed threats upon his return to his home country, or what information relied on by the Director or the Board were irrelevant. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

[16]  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.

[17]  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 16 – 25 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.  

[18]  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[19]  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 under all the applicable grounds including BOR 2 which in any event even on the basis of his own case simply did not engage the BOR 2 ground.

[20]  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

8.  The applicant’s last known address at the time of the Judge’s decision was at the Castle Peak Bay Immigration Centre (“the Centre”). According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Centre on 24 March 2022, and were not returned undelivered.  

9.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 24 March 2022.

10.  The applicant thereafter took out a summons in the Court of First Instance on 23 May 2022 seeking extension of time to appeal, in which his address was stated to be the Address.  In his supporting affirmation filed on the same date, he claimed that he did not receive the CALL-1 Form in time.

11.  The applicant’s application to appeal out of time was dismissed by the Judge on 26 October 2022[6].

12.  By a summons filed on 3 August 2023, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, the applicant stated that he wished to appeal against the decision given by the Judge on 26 October 2022, being the Judge’s refusal to grant an extension of time for him to appeal against his decision dated 24 March 2022.  Although in the summons the applicant purported to seek leave to appeal against the decision of the Judge dated 26 October 2022, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 24 March 2022, by which leave for judicial review was refused.  

13.  In the summons and his supporting affirmation, the applicant asked this court to extend time for his appeal by reason that he was dissatisfied with the Judge’s decision and that the Judge “failed to seriously consider” his application and his explanation for “late filing”.

14.  In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court.  The applicant is therefore deemed to have abandoned his right to rely on written submissions in this application.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

16.  As noted above, the Judge’s decision was sent to the last known address of the applicant, i.e. at the Centre, but was not returned undelivered.  It was incumbent upon the applicant to notify the court of any change of address as soon as possible, the date(s) of his detention at, and release from, the Centre, and any consequences of having failed to do so lie with him.  We are therefore of the view that the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal, nor has he explained when he had come to learn of the Judge’s decision.

17.  The delay by the applicant in renewing his application for extension of time before this court is substantial (by over a year).  The application ought to be dismissed on this basis alone.  However, we nonetheless proceed to consider the merits of the intended appeal.

18.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

19.  The applicant has failed to identify any arguable 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 wrong.  Nor can we discern any such matters.

20.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

21.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 3 August 2023 is accordingly dismissed.