Rasolonirina Marie Yvon Aljymi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 33/2023, [2023] HKCA 639

On An Intended Appeal From [2021] HKCFI 2458 &

[2021] HKCFI 3183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 33 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 815 OF 2021)

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JUDGMENT

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

1.On 27 January 2023, the Applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 9 November 2022 refusing to grant him an extension of time to appeal against an earlier order of the Judge dated 26 August 2021 refusing to grant leave to apply for judicial review (“the Order”).

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 10 May 2021, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 November 2020 rejecting the Applicant’s non-refoulement claim.

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 Madagascar.  He came to Hong Kong on 28 September 2019, and was arrested at the airport for the offence of “Importing specimens of Appendix I species otherwise than in accordance with the provisions of section 5(1) of Cap. 586” and “Cruelty to animals”.  He was later charged, convicted and sentenced to two years’ imprisonment for those offences.  He lodged a non-refoulement claim with the Immigration Department when he was in prison alleging that, if refouled, he would be harmed or killed by his employer called Ali, who had asked him to carry some tortoises into Hong Kong, because Ali had lost a substantial amount of money and would be charged with criminal offence(s) in Madagascar.  The Applicant also claimed that he feared he would be charged for the same offence again if he returned to Madagascar.  Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2021] HKCFI 2458).

5.By a Notice of Decision dated 13 November 2020, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.The Applicant appealed the Director’s Decision to the Board.  On 10 May 2021, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board found, inter alia, that:

(1)  The Applicant’s evidence at the hearing about his claim was extremely vague and contradictory.  Further, apart from the threats that the Applicant claimed his wife had related to him, his claim rested entirely on uninformed speculation as to what might happen to him should he return to Madagascar. 

(2)  The Applicant’s claim of fear of harm at the hands of Ali and/or the Madagascan authorities had no credible basis, and the Applicant had failed to establish substantial grounds to support the conclusion that he would face a real risk of persecution, CIDTP or torture, or real risk to his life, as claimed by him if he returned to Madagascar.

(3)  Although the available Country of Origin Information indicated that Madagascar did have legislation providing for prosecution against trafficking wildlife, the legislation was not enforced.  Further, having regard to the provisions against double jeopardy in the Madagascan Constitution, there was no real risk that the Applicant would face prosecution for the same offence should he return to Madagascar.

7.On 3 June 2021, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of judicial review was given in the Form 86.  In his supporting affirmation filed on the same date, he said that the Adjudicator failed to understand the seriousness of his claims, everything he said was true, and he did not want to go back to his home country because he feared that he would be persecuted and might be killed.

THE JUDGE’S DECISION

8.On 26 August 2021, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[16] The Board is entitled to come to its conclusion as to the risk of him being killed by his employer, based upon the evidence before him. As to the issue of double jeopardy of prosecution in his home country, which should be considered under BOR 3 risk, the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743 had considered the same issue and held:

‘182. I do not think that the “severe mental and psychological blow” and the severe “frustration” that he might experience at the prospect of facing “yet another trial and imprisonment in relation to precisely the same conduct” … comes anywhere near to meeting the threshold requirements …’

[17] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

[18] There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.”

9.On 18 October 2021, the Applicant applied by summons for an extension of time to appeal against the Order.  On 9 November 2021, the Judge refused the application, holding (inter alia) that the Applicant did not have any realistic prospect of success in his intended appeal ([2021] HKCFI 3183).

THIS APPLICATION

10.By a summons taken out on 27 January 2023, the Applicant applied for leave to appeal against the Judge’s order of 9 November 2021.  In a document attached to his affirmation of 27 January 2023, the Applicant gave the following reasons for his delay:

(1)  His lack of knowledge and experience partially caused the delay in his application.

(2)  He received the “Judicial Review Decision” 15 days late (on 10 September 2021), and so could not have appealed within the 14-day time limit.

(3)  He made an application for legal aid and was waiting for the outcome of his legal aid application, which was later rejected by the Legal Aid Department.  He could not proceed with the application prior to knowing the outcome of the legal aid application.

11.In the same document, he raised the following grounds of intended appeal:

(1)  His fear of ill-treatment in his home country was supported by the release certificate of his wife.  She was arrested and arbitrarily detained by the Madagascan Police because of a false statement made by his employer (Ali) and a bribe paid by him to the authorities.

(2)  The Court and the Board erred in accepting the Director’s finding that Ali was not a powerful person who wielded influence and could fetch him wherever he lived in Madagascar.  The said finding was unfair.

(3)  The Court and the Board erred in accepting that he could relocate to other parts of Madagascar where he would be safe.  Due to the availability of mobile phones and other channels of communication and the widespread corruption amongst government officials (including the police and judicial officers) as supported by the country of origin information, Ali could easily fetch and kill him.

(4)  The fact that the Board was unable to produce or locate any country of origin information which supported his claim of double jeopardy does not take away the fact that the authorities in Madagascar would torture him if he was to be refouled to Madagascar.

The Applicant also produced 5 documents to support the aforesaid intended grounds of appeal.

12.In his written submissions dated 3 January 2023, the Applicant says that the Board was wrong to find that the “Trafficking Wildlife” laws in Madagascar are seldom enforced, he will be pressured to give information about Ali’s involvement in the trafficking of “tortoise”, the Madagascar authorities will not provide protection due to corruption amongst government officials, and his wife was arbitrarily detained because Ali bribed the corrupt officials in Madagascar.

DISCUSSION

13.Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

14.In deciding whether to extend time to appeal, the 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.

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

16.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, 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 judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at §14(6)).

17.In any event, the complaints now raised by the Applicant in his affirmation of 27 January 2023 and written submissions have no merits and cannot constitute valid grounds of appeal:

(1)  They are new complaints which were not raised in the Form 86 or in his affirmation filed in support of the application for leave to apply for judicial review.  There is no good reason to allow the Applicant to raise new grounds of complaint in the Court of Appeal which were not raised in the application below, nor is there is any good ground to permit the Applicant to adduce fresh evidence in support of his intended appeal.

(2)  Generally, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

18.The Applicant has failed to identify or show any error in the Judge’s decision of 26 August 2021, and has failed to raise any viable ground of appeal against the Order.

19.There is no prospect of success in the Applicant’s intended appeal.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

20.The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 27 January 2023 is dismissed.

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

[2] 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.

[3] 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.

[4] 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.