Djiu Sun Fo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 325/2021

[2022] HKCA 260

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 325 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1856 OF 2018)

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Before: Hon Kwan VP and Chow JA in Court

Date of Written Submission: 19 August 2021

Date of Judgment: 25 February 2022

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.On 18 June 2020, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1].

2.On 30 July 2021, the applicant’s application for extension of time to appeal against the said decision was dismissed by the judge as there is no reasonable prospect of success in the intended appeal^[2].

3.On 6 August 2021, the applicant filed the present summons with the Court of Appeal seeking to set aside the order dated 30 July 2021 and for leave to file a notice of appeal. 

4.This summons should be treated as a renewed application for leave to appeal out of time against the decision dated 18 June 2020 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

5.The applicant is a national of Indonesia.  He is 38 years old.  He entered Hong Kong on 25 February 2014 on the basis of his Indonesian passport. He was permitted to remain as a visitor until 27 March 2014 but overstayed.  On 25 August 2014 he surrendered himself and launched a non-refoulement claim. His claim was on the basis that he would be harmed or even killed by his business partner’s creditor, Dedi, and his people, as they held him responsible for the default payment of the loan of his business partner.  

The Director’s decision

6.By a Notice of Decision dated 27 September 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on torture risk^[3], BOR 2 risk^[4], BOR 3 risk^[5], and persecution risk^[6].

The Board’s decision

7.The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 23 July 2018.  The Board did not find the applicant to be a credible witness.  The Board considered the applicant’s evidence and rejected all his evidence in relation to the risks he claimed, including the fact that he had a business partnership with his friend, that his friend had drawn a loan from the loan shark, that the loan shark demanded repayment from him, and that he came to Hong Kong to avoid the loan shark.  The Board held that his stories were fabricated for his application for the non-refoulement claim.  Therefore, the Board dismissed the appeal on 28 August 2018.

The intended judicial review

8.The applicant filed a Form 86 and an affirmation on 6 September 2018 for leave to apply for judicial review against the decisions of the Director and the Board.  He gave no grounds in support of his application in his affirmation.

The judge’s decision

9.The judge considered there were simply no merits at all in the submissions of the applicant.  At the hearing, the applicant confirmed to the judge that he was treated fairly before the immigration officer and the adjudicator of the Board.

10.The judge followed the decision of the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 that the court would not usurp the roles of the Director and the Board as the primary decision makers and that the determination of the merits of a non-refoulement claim is essentially a matter for them, not for the court.

11.Since the applicant was unable to show he had a reasonable prospect of success for his intended judicial review, leave was refused and the application was dismissed on 18 June 2020.

Grounds of intended appeal

12.In his affirmation for this application, the applicant claims he did not agree that his claim should be rejected because of no prospect of success.  In his written submissions for the present appeal, he stated the following grounds in gist:

(1)  It was unfair for the judge to find that his version of events was fabricated; and

(2)  The decision of the judge was swayed by bias due to lack of understanding of the situation of his home country.

Analysis and disposition

13.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.

14.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 18 June 2020.  The applicant took out a summons for leave to appeal out of time at the court below on 16 July 2020.  He was late by 14 days.

15.The applicant explained in his supporting affirmation filed with the court below he was late because he did not understand the legal system here until he had found someone who gave him assistance.

16.We do not consider his explanation for the delay acceptable. In the absence of an acceptable explanation, the applicant has to satisfy this court that his appeal has a real prospect of success for an extension of time to be granted^[7].

17.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14 as mentioned above.

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.  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.In the present application, the applicant has not put forward any ground to reverse the judge’s decision.  The judge found no reasonably arguable grounds to challenge the decisions of the Director and the Board by way of judicial review.  The applicant failed to show that he has any prospect of success in his intended appeal.  We therefore refuse to extend time to appeal against the judge’s decision of 18 June 2020 and dismiss the summons filed on 6 August 2021.

The Applicant, acting in person

[1] [2020] HKCFI 1220

[2] [2021] HKCFI 2100

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

[4] 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).

[5] 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).

[6] 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.

[7] Re Kanwal Gulnaz [2021] HKCA 636 at §15; Re Ansar Muhammad [2018] HKCA 227 at §8; Re MA [2019] HKCA 1020 at §18