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

CAMP 168/2021

[2022] HKCA 391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 168 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1575 OF 2018)

________________________

________________________

Before: Hon Kwan VP and Chu JA in Court

Date of Written Submission: 2 July 2021

Date of Judgment: 18 March 2022

________________________

J U D G M E N T

________________________

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

1.On 23 June 2020, Campbell-Moffat J 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 4 May 2021, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there is no prospect of success in the intended appeal^[2].

3.On 18 May 2021, the applicant filed the present summons with the Court of Appeal against the decision of the judge dated 4 May 2021 and an extension of time to lodge his notice of appeal.  In light of the decision 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 of the judge dated 23 June 2020.

4.The applicant is a national of the Philippines. He is 35 years old.  He entered Hong Kong legally on 5 November 2008 as a visitor and was arrested on overstaying on 26 March 2009.  He lodged a non-refoulement claim on 23 June 2014 on the basis that he would be harmed or killed as he had witnessed a murder of a neighbour by someone working for a candidate of a mayoral election in the Quezon province of the Philippines. 

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

6.By a Notice of Further Decision dated 19 April 2017, the Director rejected his claims on BOR 2 risk^[6] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claims.

7.The applicant appealed against the Director’s decision of 31 October 2014 to the Board and attended the hearing before the Board on 3 July 2015.  The Board found the evidence of the applicant unreliable, illogical and contradictory.  He was unable to recall the name of the candidate for the mayoral election nor was he able to produce documents that were allegedly threatening to him.   The Board also found his case lacking in significant details in other areas and evidence in support.  In any event, the Board found he had not been harmed in any way, was not threatened by any state agency and had not sought official redress for his concerns. Therefore, the Board dismissed his claim on 13 December 2016.

8.As for the further decision of the Director in respect of BOR 2 risk, the applicant also sought to appeal against this decision to the Board.  However, the appeal was late and no explanation was given save that the applicant alleged that he received the Notice of Further Decision just two days prior to lodging an appeal against it.  Therefore, the Board exercised its discretion and did not allow the applicant’s application to appeal against this decision on 17 July 2018.

The judge’s decision

9.On 8 August 2018, the applicant applied for leave to apply for judicial review against the decision of the Board.  His ground is that the Board did not consider his dangerous situation that he would face in the Philippines.  As he did not request for an oral hearing, Campbell-Moffat J considered the application on paper. 

10.The judge held that the applicant’s ground is not supported by any evidence or specifics, as the applicant’s supporting affidavit only stated that the decision by the Board was wrong. The judge also found no error of law or procedural unfairness in the Board’s decision.  Thus, the judge concluded that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 23 June 2020.

Grounds of appeal

11.The applicant’s grounds of appeal in his summons and supporting affirmation are mainly that he was ignorant of court procedure as he is a foreigner.

12.In his written submissions, the applicant reiterated the problems he may face if he returns to the Philippines.  He also cited information from some websites regarding the situation there, which he submitted that the Board should have considered.

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 judge’s order was made on 23 June 2020.  The applicant took out summons in the court below on 29 September 2020.  He was late for 10 weeks and he has not provided any reason for the delay.

15.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.

16.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.

17.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.

18.In the present case, the applicant did not put forward 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 into account relevant matters already placed before the court or was otherwise plainly wrong.

19.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 23 June 2020 and dismiss the summons filed on 18 May 2021.

The Applicant, acting in person

[1] [2020] HKCFI 1331

[2] [2021] HKCFI 1263

[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).