Raghuveer Chand v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 423/2021

[2022] HKCA 513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 423 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 204 OF 2019)

________________________

________________________

Before:  Hon Kwan VP and Chow JA in Court

Date of Written Submission:  11 October 2021

Date of Judgment:  22 April 2022

____________________

J U D G M E N T

____________________

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

1.On 14 September 2020, Deputy High Court Judge CP Pang 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 10 August 2021, DHCJ Bruno Chan dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal^[2].

3.On 4 October 2021, the applicant filed the present summons with the Court of Appeal essentially to appeal the Order made by DHCJ Bruno Chan dated 10 August 2021.  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 DHCJ CP Pang dated 14 September 2020.

4.The applicant is a national of India.  He is 28 years old.  He came to Hong Kong as a visitor on 1 September 2014 and surrendered to the Immigration Department on 28 October 2014 for overstaying and lodged his non-refoulement claim form on 10 August 2017 on the basis he would be harmed or killed by the family of his girlfriend.

5.By a Notice of Decision dated 8 September 2017, the Director rejected the applicant’s claims on all then applicable grounds including torture risk^[3], BOR 3 risk^[4], BOR 2 risk^[5] and persecution risk^[6]. 

6.The applicant appealed against the Director’s Notice of Decision to the Board and attended the hearing before the Board on 19 November 2018.  He was unrepresented before the Board and gave evidence in support of his claims.  The Board, however, found that the applicant failed to show he was in fear of persecution, or suffered any torture in India.  In particular, the Board found the applicant’s evidence incredulous, in that he could not even recall the name of his girlfriend.  The evidence in support of his claims was rejected by the Board.  In any event, the Board found no basis that the applicant would face any risk of torture or persecution in India if he is to return to his country. Therefore, the Board dismissed his claim on 16 January 2019.

The judge’s decision

7.On 22 January 2019, the applicant applied for leave to apply for judicial review against the decision of the Board.  He did not provide any grounds in support of his application as he only annexed the decision of the Board to his supporting affirmation.  As he did not request for an oral hearing, DHCJ CP Pang considered the application on paper. 

8.The judge held there is nothing to show that the Board had committed any error in applying the law, made irrational findings, or that there was procedural unfairness in coming to its conclusions.  Thus, the judge found the intended judicial review has no reasonable prospect of success and dismissed the leave application on 14 September 2020.

Grounds of appeal

9.The applicant did not provide any grounds of appeal in his summons.  As for his supporting affirmation, he stated basically he was ignorant of court procedures and missed the filing deadline to appeal.  In his written submissions, the applicant again stated his fear of being sent back to India. 

Analysis and disposition

10.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.

11.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 14 September 2020.  The applicant took out a summons in the court below on 6 October 2020.  He was late for about 8 days.  He has not provided a reasonable explanation for the delay, as the court records did not show that the judgment sent to him was returned undelivered.

12.Given that the delay is not substantial, we will focus on the merits of the intended appeal.

13.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.

14.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.

15.The applicant’s written submissions are simply bare assertions unsupported by any evidence.  Some of the submissions made appear to be totally irrelevant to the applicant’s own case, nor were these submissions made before the court below.  In any event, the applicant failed to adduce any evidence to refute the Board’s findings or to provide any particulars to show that the Board failed to apply high standards of fairness or had acted in a procedurally unfair manner.  Furthermore, the applicant failed to demonstrate that the judge was wrong in refusing to grant leave for him to apply for judicial review.

16.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 14 September 2020 and dismiss the summons filed on 4 October 2021.

The Applicant, acting in person

[1]  [2020] HKCFI 2298

[2]  [2021] HKCFI 2256

[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 being arbitrarily deprived of life under Article 2 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.