Manish v. Torture Claims Appeal Board

CAMP 39/2024, [2024] HKCA 698

On An Intended Appeal From [2020] HKCFI 2328 &

[2022] HKCFI 116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 39 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 845 OF 2018)

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J U D G M E N T

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

1.On 27 February 2024, the Applicant took out a summons with a supporting affirmation to apply for leave to appeal out of time against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 18 September 2020 (“the Order”) refusing leave to the Applicant to apply for judicial review.

2.The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 9 April 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 November 2016.

3.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral 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 previously entered Hong Kong in March 2011 and raised a torture claim[1]. His torture claim was rejected by the Immigration Department and he was repatriated back to India in May 2012. On 2 February 2014, he entered Hong Kong illegally, and was arrested by the police on 4 March 2014. He raised a non-refoulement claim on the basis that, if he returned to India, he would be harmed or killed by his uncles over their land dispute with his father and/or by his girlfriend’s family who were against their relationship. Details of the Applicant’s claim have been summarised by the Judge at §§1-7 of the CALL-1 Form ([2020] HKCFI 2328).

5.By a Notice of Decision dated 30 November 2016, the Director rejected the Applicant’s non-refoulement claim on the following remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

6.The Applicant appealed the Director’s Decision to the Board. On 9 April 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §11 of the CALL-1 Form, as follows:

“In its decision the Board found it unacceptable of the Applicant’s explanation for his failure to attend the scheduled oral hearing of his appeal and his subsequent failure to provide any further details or documentary evidence in support of his claim of having gone elsewhere to tend to other matter on that day and given his past failures to attend screening interviews before the Immigration Department, and proceeded to find such serious inconsistencies and discrepancies in his claims of being threatened by his uncles over the land dispute or by the family of his former girlfriend that it concluded that he is not facing any risk related to any of the proscribed forms upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.”

7.On 15 May 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision. No ground of review of the Board’s Decision was given in the Form 86.

THE JUDGE’S DECISION

8.On 18 September 2020, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“14. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 116 – 143 in its decision, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

15. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

9.On 15 June 2021, the Applicant applied by summons for an extension of time to appeal against the Order. On 19 January 2022, the Judge refused the Applicant’s application, holding that the Applicant had provided no good reason for his delay, and there was no prospect success in his intended appeal.

THIS APPLICATION

10.By a summons taken out on 27 February 2024, the Applicant applied for leave to appeal out of time against the Order. In his affirmation of the same date, the Applicant asserted that he would like to appeal out of time as he never received any correspondence from the High Court and was unaware of the rules concerning the 14-day time limit for appeal.

11.In his written submissions dated 12 March 2024 and filed on 20 March 2024, the Applicant set out some general principles of law relating to non-refoulement claims, but failed to explain how those principles were relevant or applicable to his case.

DISCUSSION

12.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 an extension of time to appeal against the Order.

13.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.

14.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.

15.The Court of Appeal’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. 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)).

16.Further, 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 error of law or procedural unfairness or irrationality in the decisions of the Director and Board is shown in the present case.

17.The Applicant has failed to give any good or valid reason for his substantial delay in seeking an extension of time to appeal. Further, he has failed to identify any error in the Judge’s decision of 18 September 2020, or raise any viable ground of appeal against the Order.

18.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

19.The renewed application for extension of time to appeal is refused, and the Applicant’s summons of 27 February 2024 is dismissed.

The Applicant, acting in person