Sonu Alias Sonu Rana v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 161/2020

[2021] HKCA 522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 161 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 123 OF 2018)

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Before: Hon Kwan VP and Chu JA in Court

Date of Written Submission: 18 December 2020

Date of Judgment: 23 April 2021

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 17 June 2019, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2.On 15 May 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 2 July 2019.  The application was heard by DHCJ Bruno Chan on 16 July 2020 and dismissed on 20 August 2020[2].

3.On 11 September 2020, the applicant took out this renewed application in the Court of Appeal for extension of time to appeal against the judge’s decision of 17 June 2019.

4.The applicant is a national of India.  He is 34 years old.  He entered Hong Kong illegally in May 2012 and was arrested by police on 18 June 2012.  He raised a torture claim on 21 June 2012, which was later taken as a non-refoulement claim, on the basis that if he returned to India he would be harmed or killed by the people of the Valmiki caste in his home village as he was from the Rajput caste.

The Director’s decisions

5.By a Notice of Decision dated 28 October 2015, the Director of Immigration (“the Director”) rejected the applicant’s claim on BOR 3 risk[3], torture risk[4] and persecution risk[5]. 

6.By a Notice of Further Decision dated 14 March 2017, the Director rejected the applicant’s claim on BOR 2 risk[6]. 

The Board’s decision

7.The applicant’s appeal was heard before the Board on 7 April 2017.  The Board found that the applicant was the instigator of his own predicament and what had befallen on him did not attain the level of severity to come within the definition of torture.  The Board further found no evidence that there existed a consistent pattern of gross, flagrant or mass violation of human rights in India or that there is a personal and real risk of the applicant being subjected to BOR 2 risk and BOR 3 risk on his return to India.  It was also held that the dispute is private in nature and there was no state involvement.  The Board also considered that the availability of state protection and internal relocation options in India would further reduce the risks of harm, if any.  Thus, the Board dismissed the applicant’s appeal on 23 January 2018.

The intended judicial review

8.The applicant filed a Form 86 and an affirmation on 26 January 2018 to seek leave to apply for judicial review against the decision the Board.  He put forward the following grounds for his intended challenge:

(1)  irrationality in its failure to consider the concept of state acquiescence;

(2)  procedural impropriety for making insufficient inquiry and for failing to provide adequate reasons for its decision;

(3)  procedural impropriety/unfairness in its failure to investigate into the Country of Origin Information (“COI”) of India;

(4)  irrationality in its failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(5)  irrationality in its failure to consider a consistent system of human right violation in India;

(6)  irrationality in its failure to consider if state protection exists in India;

(7)  irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(8)  procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluation;

(9)  procedural impropriety in applying the incorrect standard of proof and for giving no reasonable basis for rejecting his claim on credibility or to consider the extended form of state acquiescence, and failing to fully consider the COI reports in assessing risk to the applicant;

(10)  irregularity in the decision-maker being a different person than the interviewing officer; and

(11)  no proper basis for consideration of internal relocation as there was fear that his life risks the threats of death if he was to return to his home country.

The judge’s decision

9.DHCJ Bruno Chan considered that the applicant’s grounds are just broad and vague assertions without any particulars or specifics or elaborations as to how they apply or are relevant to his case and how the Board had erred in the decision.  The judge held there is no merit in the applicant’s complaints.  The judge was not satisfied that there is any prospect of success in the intended judicial review and refused the leave application on 17 June 2019.

Grounds of intended appeal

10.The applicant stated the following grounds of appeal in in his summons:

(1)  the judge did not show any good cause to refuse his leave application;

(2)  the Director and the Board did not consider the merits of his case at all.

11.His further submissions in writing may be summarized as follows:

(1)  the immigration officer did not visit India to investigate the applicant’s claim;

(2)  the Board did not consider his claim seriously;

(3)  the hearing bundle was only provided to the applicant ten days before the hearing.  The documents in the bundle are in English which the applicant could not understand.

Analysis

12.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 17 June 2019.  The applicant took out a summons at the court below on 15 May 2020.  He was late by about ten months.  The delay is very substantial.

14.The applicant explained in his affirmation filed with the court below that he failed to lodge his appeal in time as he did not receive the judge’s decision.  He submitted at the hearing before the judge that he was prepared to leave Hong Kong to return to his home country so he did not take any step to file any appeal.  He later realized his problem back home had not been resolved so he decided to proceed with his appeal.

15.The judge’s decision was sent to the applicant’s address by post on 17 June 2019 and it has not been returned by the Post Office.  His explanations for the substantial delay are not justifiable.

16.As his delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

17.In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

18.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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

19.The applicant’s intended grounds of appeal stated in the summons are just bare assertion without particulars, elaboration or evidence in support.  In particular, the judge has set out his reasons for rejecting the leave application in paragraphs 10 to 14 of the decision dated 17 June 2019.  The applicant failed to identify any errors of law, any failure to take account of relevant matters already placed before the court or any other mistakes in the judge’s decision in refusing to grant leave to apply for judicial review. 

20.For the above reasons, the applicant does not have any prospect of success in the intended appeal.  We therefore refuse to grant extension of time to appeal against the judge’s decision and dismiss the summons he filed on 11 September 2020.

The Applicant, acting in person

[1] [2019] HKCFI 1015

[2] [2020] HKCFI 1960

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]^.. This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.