Mohomed Rahoof Mohomed Sajahan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 306/2022

[2023] HKCA 215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 306 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2216 OF 2018)

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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 4 May 2022, 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 6 July 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merits in the intended appeal[2].

3.On 19 August 2022, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal.

4.The applicant is a national of Sri Lanka. He is 42 years old. He entered Hong Kong illegally on 27 July 2006 and was subsequently arrested by the police on 31 January 2007. He had previously made a torture claim but was rejected by the Immigration Department. The applicant’s subsequent petition against the Director of Immigration was rejected on 22 June 2012. By way of written representation, the applicant lodged a non-refoulement claim on 8 April 2013 on the basis that he would be harmed or killed due to ethnic and religious conflicts, and risk of torture by triad members, if he is returned to Sri Lanka.

5.By a Notice of Decision dated 7 April 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 decision and appeared before the Board for an oral hearing on 9 May 2018. The Board asked various questions to assess the veracity of the applicant’s claims. It concluded that the evidence provided was vague and speculative. In particular, the applicant’s claim that he would be harmed or killed by individuals, such as Priyantha and Sudu, is not satisfactorily proved as the Board did not accept that these individuals, or anyone else, have motivation to seriously harm the applicant. As for the risk of harm from triad members, the Board was of the view that this threat no longer exists, which is confirmed by the applicant’s own evidence. In any event, the Country of Origin Information provided to the Board did not support the applicant’s claim that he would face serious risk of harm if he is returned to Sri Lanka. Therefore, the Board rejected the applicant’s claim on 16 July 2018.

The judge’s decision

7.On 12 October 2018, the applicant applied for leave to apply for judicial review against the decision of the Board. In his affirmation in support of his application, the applicant simply repeated the risk of harm he faces if he is returned to Sri Lanka. The applicant also mentioned he would obtain documents from Sri Lanka to be provided to the Court. As the applicant did not request for an oral hearing, the judge dealt with the matter on paper.

8.After reviewing the Board’s decision with rigorous examination and anxious scrutiny, the judge did not find any error of law, procedural unfairness or failure of the Board. The judge was of the view that the documents mentioned by the applicant, which were still unavailable, would not be useful to challenge the decision of the Board. The judge further held that the findings of the Board were not in any respect open to challenge as Wednesbury unreasonable or irrational. Therefore, the judge concluded there is no prospect of success in the intended judicial review and refused the leave application on 4 May 2022.

Grounds of appeal

9.The applicant did not provide any grounds of appeal in his summons or his affirmation in support, and merely repeated that he wishes to explain the problems in Sri Lanka by submitting supporting documents and requested an oral hearing. As for his written submissions, he again repeated the dangers he faces in Sri Lanka and recites other source of information regarding the situation in his home country. The applicant also contended that he was not provided with language and/or legal assistance upon his appeal to the Board and in these legal proceedings. The applicant was, however, able to provide a copy of a warrant of arrest from Sri Lanka dated 4 July 2005 annexed to his written submissions.

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 order was made on 4 May 2022. The applicant took out a summons for extension of time to appeal at the court below on 2 June 2022. He was late by two weeks. However, the applicant did not provide any explanation for his delay and simply stated his request for an oral hearing.

12.As the applicant’s delay is not excusable, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

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.The applicant’s submissions regarding the situation in Sri Lanka are just bare assertions. As for the complaint of lack of legal and language assistance, the Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings (Re Paswan Shibu Lal [2018] HKCA 249 at §21). Furthermore, interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by the Duty Lawyer service. The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire (Re Gurung Sagar [2019] HKCA 658).

15.Lastly, the specific issue of the warrant of arrest produced by the applicant regarding his offence of damaging a Buddhist shrine was expressly dealt with by the Board’s decision at §94. The Board in fact gave the applicant the benefit of doubt and accepted that the applicant is a suspect. However, the Board held there is no evidence produced that the applicant would not be able to defend himself, or that a real risk of serious harm would occur through such process. We further note that the warrant of arrest was made some 17 years ago in 2005, and we agree with the Board’s view that the passage of years would undermine the applicant’s claim that he would face a real risk of harm in the foreseeable future if he returns to Sri Lanka.

16.Therefore, the applicant failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

17.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 4 May 2022 and dismiss the summons filed on 19 August 2022.

The Applicant, acting in person