Akhmetzyanova Irina v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 59 /2022

[2022] HKCA 1232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 59 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1409 OF 2021)

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J U D G M E N T

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

1.On 21 December 2021, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim^[1].

2.On 28 January 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the judge was of the view there is no merit in the intended appeal^[2].

3.On 17 February 2022, the applicant filed the present summons with the Court of Appeal seeking leave to appeal out of time against the decision of the judge dated 21 December 2021.

4.Having considered the materials filed by the applicant, the court considers that the present application for extension of time to appeal should be determined on paper without an oral hearing pursuant to Order 59, r 14A(1) of the Rules of the High Court, Cap 4A^[3].

5.The applicant is a national of Russia and is 41 years old.  She arrived in Hong Kong on 17 September 2002 and subsequently obtained her dependant visa to remain in Hong Kong at various times until 1 February 2011 when it was due to expire.  She was then arrested and convicted of the offence of trafficking in dangerous drugs for which she was sentenced to 4 years and 8 months’ imprisonment.  Upon release from prison, the applicant raised her non-refoulement claim on the basis she would be harmed or killed by the Russian mafia as they had raped her in 2006 and demanded her to do promiscuous activities for them.  Her non-refoulement claim was subsequently processed under the Unified Screening Mechanism.

6.By a Notice of Decision dated 17 February 2015, the Director rejected the applicant’s claim on torture risk^[4], BOR 3 risk^[5], and persecution risk^[6].

7.By a Notice of Further Decision dated 5 December 2016, the Director rejected the applicant’s claim under BOR 2 risk^[7] as no additional information was forthcoming from the applicant.

8.The applicant appealed against the Director’s decision to the Board on 21 July 2021 and the Director’s further decision on 26 July 2021, which were both late by some 5 years^[8]. The Board decided to determine whether to extend the time for the applicant without an oral hearing.  Having considered the reasons for the late filing submitted by the applicant, such as ignorance of the procedure to appeal against the Director’s decisions, the Board held that the applicant’s late filing was unacceptable.  The lateness of 5 years is very substantial and the reasons given by the applicant are vague and in places ambiguous.  In any event, the Board was of the view that the grounds of appeal and the merits of the applicant’s non-refoulement claim are insufficient for the Board to exercise its discretion to extend time for the late filing of the appeal by the applicant.

9.In light of its findings, the Board therefore refused the applicant’s late filing on 9 September 2021.

The judge’s decision

10.On 7 October 2021, the applicant applied for leave to apply for judicial review against the Board’s decision.  She did not supply any grounds in support of her application or in her affirmation.  The applicant requested an oral hearing.  Her leave application was heard on 26 November 2021 before the judge.  She did not provide additional information at the hearing and simply asked for an adjournment to get a lawyer.  This was refused by the judge. 

11.In his decision dated 21 December 2021, the judge took the view that the Board had duly considered the merits of the applicant’s case and had good reasons to reject her late filing.  In any event, the judge did not find any error of law, irrational findings, or procedural unfairness in the decision of the Board.  There was no Wednesbury unreasonableness or irrationality in the findings of the Board.  The judge further stated that the applicant did not show any realistic prospect of success in the intended judicial review.  He refused to grant leave to apply for judicial review.

Grounds of intended appeal

12.The applicant did not provide any grounds of appeal in her present summons for this application.  In her supporting affirmation, she claimed to be ignorant of court procedures and asserted that the judge’s decision was reached unfairly without allowing her an opportunity to clarify her case and situation in her country. 

13.In the applicant’s written submissions dated 29 February 2022 but received by the court on 22 April 2022, she raised these contentions:

(1)     High standards of fairness are required on the part of decision maker in the determination of torture claim as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved.

(2)     The Board acted in a procedurally unfair manner in dealing with her application without properly assessing her credibility.

(3)     The decision of the Board was Wednesbury unreasonable and should be set aside.

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 21 December 2021.  The applicant took out a summons in the court below on 5 January 2022.  She was late for one day and as the delay is not substantial, we will focus on the merits of the intended appeal. 

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 application, the applicant only made bare assertions against the findings of the judge without elaboration or evidence in support.  She also failed to adduce any evidence to refute the Board’s findings or provide any particulars to show that the Board failed to apply high standards of fairness or had acted in a procedurally unfair manner.  As she has failed to demonstrate that the judge was wrong in refusing to grant leave to apply for judicial review, there is no possible basis to interfere with the judge’s decision.  It would be futile to grant an extension of time where there is no prospect of success in the intended appeal.

19.For the above reasons, we refuse to exercise our discretion to extend time to appeal and dismiss the applicant’s summons for extension of time to appeal filed on 17 February 2022.

The Applicant, acting in person

[1]  [2021] HKCFI 3347

[2]  [2022] HKCFI 184

[3]  Order 59 Rule 14A(1) provides that the Court of Appeal (including a single judge thereof) may, in relation to a cause or matter pending before the Court of Appeal, determine an interlocutory application without a hearing on the basis of written submissions only.

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

[5]  This refers to the 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.

[7]  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.

[8]  A person must file his/her notice of appeal to the Board within 14 days of the date of the Director’s decision to refuse his/her claim for non-refoulement, see section 37ZS(1) of the Immigration Ordinance and para 8.1 of the Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme.