HOSSAIN ZAFAR v. TORTURE CLAIMS APPEAL BOARD

CAMP 556/2021

[2022] HKCA 666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 556 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1099 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 31 May 2021, Deputy High Court Judge Bruno Chan 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 1 December 2021, DHCJ Bruno Chan dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal[2].

3.  On 10 December 2021, the applicant filed the present summons with the Court of Appeal in essence to appeal the Order made by DHCJ Bruno Chan dated 31 May 2021.

4.  The applicant is a national of India. He is 28 years old. He came to Hong Kong as a visitor on 17 April 2016 and surrendered to the Immigration Department on 9 May 2016 for overstaying. He lodged his non-refoulement claim on 11 and 25 July 2016 on the basis he would be harmed or killed by a rival political party of the All India Trinamool Congress (“AITC”).

5.  By a Notice of Decision dated 23 December 2016, 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 Notice of Decision to the Board and attended the hearing before the Board on 30 April 2018. He gave evidence before the Board in support of his claims. The Board, however, did not accept the applicant’s credibility as there were various inconsistencies and discrepancies in his evidence. In particular, the applicant’s claims that the AITC would kill him and burn down his family home were found to be exaggerated and unsubstantiated as he was unable to produce evidence in support of these allegations.

7.  In any event, the Board found it was not unreasonable for the applicant to relocate to another region in India. As the Board found no basis that the applicant would face any risk of torture or persecution in India if he is returned there, the Board dismissed his claim on 12 June 2018.

The judge’s decision

8.  On 14 June 2018, the applicant applied for leave to apply for judicial review against the decision of the Board. He did not supply any grounds in support of his application and only annexed the decisions of the Board and the Director with the hearing bundle at the Board hearing in his supporting affirmation.

9.  The application was considered at an oral hearing on 13 May 2021 before DHCJ Bruno Chan. The judge considered there is no error of law, procedural unfairness or failure to apply high standards of fairness in the decisions of the Director and the Board. Thus, the judge concluded that the intended judicial review has no prospect of success and dismissed his leave application on 31 May 2021.

Grounds of appeal

10.  The applicant did not provide any grounds of appeal in his summons save that he stated that the judge was wrong to refuse leave. As for his supporting affirmation, he reiterated what was alleged before the Board that he will face hardship if deported to India. His contentions in his written submissions may be summarised as follows:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker; and

(2)  the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

11.  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.

12.  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 31 May 2021. The applicant took out a summons in the court below on 16 June 2021 and was one day late. His reason for the delay was that he had changed his address and did not receive the relevant court documents within time. We do not consider this explanation acceptable but as he was merely one day out of time, we will focus on the merits of his case in considering whether extension of time should be granted.

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.  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.

15.  In the present case, the applicant did not put forward any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant leave for him to bring judicial review. He did not provide any particulars to show that the Board had failed to apply high standards of fairness or acted in a procedurally unfair manner as he had contended. He had failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

16.  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 31 May 2021 and dismiss the summons filed on 10 December 2021.