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

CAMP 65/2022

[2022] HKCA 1004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 65 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 3014 OF 2018)

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JUDGMENT

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

1.On 21 February 2022, the Applicant took out a summons with a supporting affirmation seeking an extension of time to appeal against the order of Deputy High Court Judge P Li (“the Judge”) dated 8 September 2021 (“the Order”) refusing to grant him leave to apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 24 December 2018, which dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 29 January 2018.

3.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, Cap 4A.

BACKGROUND

4.The Applicant is a national of India.  He last arrived in Hong Kong on 27 November 2013 and was permitted to stay until 11 December 2013.  He surrendered to the Immigration Department on 17 February 2014 for overstaying, and lodged a non-refoulement claim on 4 April 2014, alleging that if refouled, he would be harmed or killed by his uncle over a dispute regarding the ownership of his grandmother’s house.  Details of the Applicant’s claim have been summarised by the Judge at §§1-10 of the CALL-1 Form ([2021] HKCFI 2681).

5.By a Notice of Decision dated 29 January 2018, 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].

6.On 24 December 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”).  The Board found that the Applicant faced no real risk of harm.  The Board considered that the Applicant’s alleged dispute with his uncle was financial and private in nature.  No public official was involved.  There was no evidence that the Indian police in general failed to exercise due diligence to investigate or punish offenders, or the human rights conditions there were so dire that his right to life in India would be threatened.  The harm which the Applicant feared did not come under any of the grounds for protection under the Refugee Convention.  In any event, there were reasonable relocation options open to the Applicant.

JUDGE’S DECISION

7.On 31 December 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

8.On 8 September 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“16. In judicial review, the task of this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.

17. In my view, the adjudicator had fairly conducted the oral hearings. The analysis of the evidence was thorough and correct. I agree with him that the evidence did not support a real risk of harm for non-refoulement protection albeit there might be a small risk.

18. In my judgment, there is no error of law or procedure.  The decision is reasonable.”

9.On 14 January 2022, the Judge refused the Applicant’s application by a summons dated 24 September 2021 for an extension of time to appeal against the Order.

THIS APPLICATION

10.By a summons taken out on 21 February 2022, the Applicant renewed his application for an extension of time to appeal the Order to the Court of Appeal.  In his supporting affirmation filed on the same date, the Applicant wrote that he was an asylum seeker, and apologised that he was late in arranging money to appeal.

11.In his 4-page written submissions dated 1 March 2022, the Applicant made generic submissions on some general principles of law relating to non-refoulement claims.  He claimed that the Board did not act in a procedurally fair manner in dealing with his application and failed to properly assess his credibility.

DISCUSSION

12.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.

13.The prospect of success of an intended appeal is important.  The court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.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.

15.The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision dated 8 September 2021, and has failed to raise any viable ground of appeal against the Order in his summons or affirmation or written submissions.

16.There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

17.The application for extension of time to appeal is refused, and the Applicant’s summons of 21 February 2022 is dismissed.

The Applicant, acting in person

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

[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] 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.