Shamina Firoz v. Torture Claims Appeal Board

CACV 512/2024, [2025] HKCA 738

On Appeal From [2024] HKCFI 3245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 512 OF 2024

(ON APPEAL FROM HCAL NO 1236 OF 2020)

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BETWEEN

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J U D G M E N T

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Hon Andrew Chan J (giving the Judgment of the Court):

1.This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 21 November 2024 (“the Order”)  refusing to grant leave to the Applicant to apply for judicial review of the Torture Claims Appeal Board/Non-refoulement Claims Petition (“the Board”)  dated 24 October 2019, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”)  dated 10 January 2014 and 30 November 2018.

BACKGROUND

2.The Applicant is a national of India.  She last arrived in Hong Kong as a visitor on 19 May 2006, and had overstayed since 24 May 2006.  On 14 November 2007, she surrendered herself to the Immigration Department.  On 15 November 2007, she raised a torture claim[1] essentially on the basis that, if refouled, she would be harmed or killed by a drug dealer named Aapsari and members of Aapsari’s drug gang in her home village because she refused to join their gang and was perceived to be a police informant for the arrest of Aapsari for trafficking in dangerous drugs in around 1995 or 1996[2]. She claimed that she could not obtain protection from the police in India because the police were associated with the gangsters.  Details of the Applicant’s claim have been summarised by the Judge at §§1-6 of the CALL-1 Form.

3.By a Notice of Decision dated 10 January 2014 (“the Director’s 1^st Decision”), the Director rejected her torture claim.  On 22 January 2014, the Applicant appealed the Director’s 1^st Decision to the Board.

4.Pending the determining of her appeal against the Director’s 1^st Decision, the Applicant lodged a non-refoulement claim on 28 January 2014 on the same basis as her torture claim.  Her non-refoulement claim was assessed on all applicable grounds other than the risk of torture.

5.By a Notice of Decision dated 30 November 2018 (“the Director’s 2^nd Decision”), the Director dismissed the Applicant’s non-refoulement claim on all remaining applicable grounds: BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5].

6.The Applicant also appealed the Director’s 2^nd Decision to the Board.  She attended a hearing before the Board on 16 August 2019, during which she was legally represented by the Duty Lawyer Service and assisted by an interpreter in the Hindi and English languages[6].  On 24 October 2019, the Board dismissed the Applicant’s appeal, and affirmed the Director’s 1^st and 2^nd Decisions (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §10 of the CALL-1 Form, as follows:

“In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from those local gangsters or the police that caused her to leave her country to come to Hong Kong to seek protection, that even if her claimed fears were real that there is no reliable evidence of any real intention of those gangsters to seriously harm or kill her or to still have any adverse interest in her after all these years since she left the country, nor is it accepted that the police would still have any adverse interest in her given that she had been able to leave and re-enter the country without any problem, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon her return to India as well as reasonable internal relocation alternatives for her to move safely to other areas of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

7.On 19 June 2020, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  By then, she was more than 4 months late to file her leave application for judicial review.  The Applicant’s intended grounds of judicial review, as set out in a document titled “Facts/reasons in support of the application” attached to her supporting affirmation of the same date, have been summarised by the Judge at §11 of the CALL-1 Form, as follows:

“(1)  That the Board failed to properly assess her claim under the [Unified Screening Mechanism (‘USM’)];

(2)  That she was not provided legal assistance for her appeal before the Board which affected her presentation of her claim to the Board.”

8.On 21 November 2024, the Judge refused to extend time for the Applicant to apply for leave to apply for judicial review of the Board’s Decision, and dismissed her leave application.  The reasons for his decision were set out at §§14-20 of the CALL-1 Form:

“[14] In the Applicant’s case, a delay of more than 4 months must be considered as very substantial and inordinate, for which she explained at the hearing of her application that being uneducated and without legal representation that she was not aware of the procedural requirements for the filing of her leave application.

[15] The record shows that the decision was sent on the same day of 24 October 2019 by the Board to her lawyer from [Duty Lawyer Service (‘DLS’)] without being returned through undelivered post, while ignorance of the procedural rules can never be accepted as an excuse for their non-compliance. As such, I am not satisfied that there is any good or valid reason for her such serious delay.

[16] As for the merits, if any, of her intended application, those 2 grounds put forward by the Applicant are either some bare and vague assertions without any relevant or necessary particulars or specifics or elaborations as to how the Board had failed to properly assess her claim under USM or on the applicable grounds, while her complaint of not being provided with legal representation for her appeal to the Board is clearly and factually incorrect when she was in fact represented by a lawyer from DLS in her appeal before the Board during which she was able to make full representations for her claim and with submissions made on her behalf by her lawyer to the Board. As such, and in the absence of any further elaboration or argument from the Applicant at the hearing of her application, I do not find either of these grounds reasonably arguable for her intended challenge.

[17] As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh…

[18] In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of India, there is simply no justification to afford her with non-refoulement protection in Hong Kong…

[19] 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.

[20]  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.”

THIS APPEAL

9.In her Notice of Appeal filed on 28 November 2024, the Applicant stated the following:

“The Applicant will face hardship if her is to return back to [her] home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” [sic]

10.In her written submissions lodged on 11 April 2025, the Applicant stated that she did not agree with the decisions made by the Director and the Board, and considered her case had not been determined fairly.  She complained about not being provided with legal or language assistance.  She alleged generally that the Board had unfairly fettered its discretion and acted in a procedurally unfair manner, and its decision was unreasonable or irrational in the public law sense and was a result of procedural errors.  She also alleged that the authorities had acted in a discriminatory manner towards non-refoulement claimants.

11.At the hearing of the appeal, the Applicant asked for an adjournment pending her Legal Aid Appeal.  We proceeded to deal with her present appeal but agreed to reopen the case if she were successful to obtain legal aid after her Legal Aid Appeal hearing on 1 September 2025.  We also warned her that should we hear nothing regarding the result of her Legal Aid Appeal after the hearing, we would hand down our judgment in due course.  Up to today, we have heard nothing from her.

DISCUSSION

12.Under Order 53, Rule 4 of the Rules of High Court, Cap 4A, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

13.We agree with the Judge that there was a substantial and inordinate delay of more than 4 months by the Applicant in seeking leave to apply for judicial review in the present case, for which she had not offered any explanation.

14.As for the merits of the appeal, 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 a non-refoulement case, 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 or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst,at §14(6)).

15.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 are errors 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.

16.The Applicant has failed to identify or show any error in the Judge’s decision refusing to extend time for her to apply for leave to apply for judicial review, or grant leave to apply for judicial review.  Her complaint about lack of legal and language assistance has no merit.  The Applicant had free legal assistance from the Duty Lawyer Service in relation to the assessment of her claims by the Director and also the determination of her appeal by the Board.  She was provided with language assistance in the hearing before the Board and that before the Judge.  It is well established that a non-refoulement claimant is not entitled to free legal representation or language assistance at all stages of the assessment of her non-refoulement claim.  The other complaints by the Applicant are all bare assertions without particulars, and cannot constitute valid grounds of appeal.  We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the Order. 

17.The Applicant’s appeal has no merit, and is dismissed.

The Applicant, unrepresented, appeared in person