Mohammed Afsar Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 281/2021

[2022] HKCA 351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 281 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1809 OF 2018)

________________________

________________________

Before: Hon Kwan VP and Chu JA in Court

Date of Judgment: 16 March 2022

________________________

J U D G M E N T

________________________

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

1.On 9 July 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 19 July 2021, DHCJ Lung dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show that he has any reasonable prospect of success in his intended appeal^[2].

3.On 26 July 2021, the applicant filed the present summons with the Court of Appeal challenging the decision of the judge.  In light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision made by the judge dated 9 July 2020.

4.The applicant is a national of India.  He is 37 years old.  He entered Hong Kong as a visitor on 23 November 2013 and was arrested for overstaying on 3 March 2014.  He submitted a non-refoulement claim on the same day on the basis that he would be harmed or even killed by his wife’s family because of their alleged opposition to his marriage. 

5.By a Notice of Decision dated 31 July 2014, the Director of Immigration rejected the applicant’s claim in respect of torture risk^[3], BOR 3 risk^[4], and persecution risk^[5] (“Director’s Decision”).

6.By a Notice of Further Decision dated 4 January 2017, the Director rejected the applicant’s claim in respect of BOR 2 risk^[6] (“Director’s Further Decision”).

7.The applicant appealed against the Director’s Decision to the Board and attended the hearing before the Board on 18 November 2014.  The Board rejected the applicant’s appeal on 3 March 2015 and affirmed the Director’s Decision (“Board’s Decision”).  The Board’s reasoning is helpfully summarised by DHCJ Lung at §11 of his decision in respect of the applicant’s application for leave for judicial review which we set out below:

“11.  The Board considered the applicant’s evidence and found that it did not accept the Certificate of Marriage produced by the applicant as a piece of reliable evidence; that there was no evidence that a public official was involved; there was no evidence of acquiescence on the part of the government; that there was not any evidence of lack of state protection for him; that the applicant had suffered any form of torture under section 37U of the Ordinance; that he was only subjected to threats but he had made no complaint to police; that there was no evidence to show that there was a well-founded fear of persecution and finally that internal relocation was an option open to him if he were really in danger, which the Board did not accept.”

8.The applicant did not seek leave to apply for judicial review against the Board’s Decision. 

9.As for the appeal against the Director’s Further Decision, the applicant was late by 5 weeks.  His explanation was that he did not receive the Director’s Further Decision in time.  This explanation was rejected by the Board.  In any event, the Board considered the Director’s Further Decision in respect of the applicant’s BOR 2 Risk.  The Board found there was no evidence that the applicant would be at risk of harm from the state nor would the authorities in India have any interest, adverse or otherwise in the applicant.   Thus, the Board refused his appeal on 30 August 2018 (“Board’s Further Decision”).

The judge’s decision

10.On 3 September 2018, the applicant applied for leave to apply for judicial review against the Board’s Further Decision.  He did not supply any grounds in support of his application nor did he state that the Board was erroneous in deciding his case.  The applicant was requested to attend an oral hearing but did not appear in Court on the date of the hearing. Therefore, DHCJ Lung considered the application in the applicant’s absence.

11.The judge emphasised that the evaluation of evidence is essentially a matter for the Director and the Board, which they are entitled to make based on the evidence available to them, and not for the court.  In any event, the judge found no error of law in the Board’s Further Decision.  Thus, the judge concluded that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 9 July 2020. 

Grounds of appeal

12.The applicant’s grounds of appeal in his summons would appear to be challenging the decision of the judge on the basis that it was erroneous for the judge to accept the Board’s Further Decision.  It would also appear from the summons that the applicant is further challenging the judge that he had failed to consider all applicable grounds of non-refoulement claims under Articles 2 and 22 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). 

13.As for his supporting affirmation, the applicant stated that he again seeks an appeal to this court as he would face hardship if deported to India.  There are no exhibits of evidence annexed to his supporting affirmation nor has the applicant submitted any written submissions as at the date of this judgment.

Analysis and disposition

14.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.

15.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 judge’s order was made on 9 July 2020.  The applicant took out a summons in the court below on 27 August 2020.  The delay was over 3 weeks and he has not provided a reasonable explanation for the delay.

16.As the applicant’s delay is inexcusable, he must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

17.In assessing the merits 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 decision of the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

19.In the present case, the applicant did not submit any reasonably arguable grounds of appeal.  The judge at the court below provided well-founded reasons for his decision.  The applicant failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

20.For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 9 July 2020 and dismiss the summons filed on 26 July 2021.

The Applicant, acting in person

[1] [2020] HKCFI 1479

[2] [2021] HKCFI 1931

[3] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4] 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).

[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).