Khan Mohammed Sahzada v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 358/2021

[2021] HKCA 1968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 358 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1300 OF 2018)

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BETWEEN

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J U D G M E N T

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

1.By a summons dated 26 August 2021, the Applicant applied for an extension of time to appeal against the order of Deputy High Court Judge C P Pang (“the Judge”)  dated 4 November 2020 refusing his application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”)  dated 22 June 2018.

2.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.

BACKGROUND

3.The Applicant is a national of India.  He arrived in Hong Kong on 6 February 2014 and was permitted to remain as a visitor until 14 February 2014.  He overstayed and remained in Hong Kong unlawfully.  On 26 May 2014, he was arrested by the police and referred to the Immigration Department for investigation.  He then lodged his non-refoulement claim on the basis that, if refouled to India, he would be harmed or even killed by his creditors for loans of 750,000 and 600,000 India Rupees respectively that he borrowed in 2013 for his garment business.  Details of the Applicant’s claim have been summarised at §§2-3 of the CALL-1 Form.

4.By a Notice of Decision dated 27 January 2016 and Notice of Further Decision dated 10 May 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decisions”).

5.The Applicant appealed the Director’s Decisions to the Board.  On 22 June 2018, the Board rejected the Applicant’s appeal and confirmed the Director’s Decisions (“the Board’s Decision”).

JUDGE’S DECISION

6.On 6 July 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

7.On 4 November 2020, the Judge refused to grant leave to the Applicant to apply for judicial review and dismissed his application.

8.The Judge was not satisfied that the Applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.  His reasons were set out at §§20-23 of Form CALL-1:

“20. It cannot be established that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

21. The Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

22. There cannot be any criticism of the decisions of the Director and the Board which are entirely reasonable.

23.    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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.”

9.Under Order 53, Rule 3(4)  of the RHC, the Applicant may appeal against the Judge’s order 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 22 December 2020, the Applicant made an application for an extension of time to appeal against the Judge’s order.  On 19 August 2021, Deputy High Court Judge Bruno Chan refused to extend time for the Applicant’s intended appeal and dismissed his application.

THIS APPLICATION

11.In his summons dated 26 August 2021, the Applicant stated that “the Learned Judge was wrong in accepting the adjudicate finding” and “…the only fact established is that the Learned Judge had failed to consider all applicable grounds of Non-refoulement Claims and in particular Non-refoulement on the grounds of risk of violation of articles 2 and 22 of the Hong Kong Bill of Rights Ordinance.”  In his supporting affirmation dated 26 August 2021, the Applicant stated that he would face hardship if he were to be returned back to India because his life would be in danger.

12.In his 4-page written submissions dated 9 September 2021, the Applicant makes generic submissions on general principles of law relating to non-refoulement claims.

DISCUSSION

13.In deciding whether to extend time to appeal, this 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.

14.The prospect of success of the 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.

15.The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

16.We agree with Deputy High Court Judge Bruno Chan that the Applicant’s delay of 34 days in lodging his appeal to be substantial, and the Applicant has not provided any good explanation for the delay.

17.Regarding the chances of the appeal, the Applicant has failed to identify any error made by the Judge in refusing to grant leave to apply for judicial review.  The Applicant’s allegation that the Judge failed to consider all applicable grounds is nothing more than a bare assertion.  The Judge considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, and did not find any error of law, irrational findings, or procedural unfairness in either of them.

18.The Applicant has not shown any errors in the Judge’s decision, or any viable grounds of appeal in his summons, supporting affirmation, or written submissions.  There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

19.The application for extension of time to appeal is refused, and the Applicant’s summons of 26 August 2021 is dismissed.

The Applicant, acting in person