RAJAN v. TORTURE CLAIMS APPEAL BOARD

CAMP 113 /2025, [2025] HKCA 1137

On appeal from [2025] HKCFI 163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 113 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 1890 OF 2024)

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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):

Background

1.  On 9 January 2025, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 6 February 2025, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance.  The summons was dismissed by the judge on 3 June 2025[2]. The applicant filed a renewed application with the Court of Appeal for extension of time to appeal on 12 June 2025.

3.  The applicant is a national of the India.  He arrived in Hong Kong on 31 May 2024 and was refused permission to land.  He lodged his non-refoulement protection claim on the same date.  His claim was made on the basis that, if refouled, he would be ill-treated or killed by the father and the elder brother of his ex-girlfriend.

The decisions of the Director and the Board

4.  By a Notice of Decision dated 18 July 2024, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

5.  He appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 30 September 2024.  The Board found that this is a case of personal dispute which has nothing to do with the applicant’s race, religion, nationality, membership of a particular social group or political opinion.  The Board further found that the injuries of the applicant were not serious at all.  In addition, the Board assessed that internal relocation option would be available to the applicant in India. Therefore, the Board decided that the applicant’s claim failed on all applicable grounds and rejected the appeal on 15 October 2024.

The intended judicial review

6.  On 21 October 2024, the applicant filed a Form 86 and an affirmation in HCAL 1890/2024 to seek leave to bring judicial review against the Board’s decision.  He put forward the following grounds for his intended challenge:

(1)     The Board reached an incorrect decision which is unfair and unreasonable in failing to adequately consider the potential threat of extra-judicial killings that the applicant may face if deported back to his home country;

(2)     The Board failed to appreciate or give proper importance to the presence of state acquiescence which led to an unfair outcome of rejecting the applicant’s claim without realising that he was tortured at the behest of the state law enforcement agencies and politicians;

(3)     The adjudicator acted unreasonably and was procedurally unfair by placing excessive reliance on the country of origin information (“COI”) but failed to take into account the applicant’s personal background and experience;

(4)     The Director had listed the relevant COI which supported the applicant’s claim that the police in his country would not be able to protect him but failed to consider or give sufficient weight to such evidence and ruled against the applicant’s case;

(5)     The adjudicator was procedurally improper and unfair when assessing the applicant’s explanations and unreasonably required him to respond to questions.  The decision was irrational;

(6)     The adjudicator failed to provide him with sufficient time and opportunity to arrange for relevant evidence for his non-refoulement claim and appeal and such failure undermined his ability to present a comprehensive case;

(7)     There are no missing or incomplete elements that would warrant the dismissal of his request for judicial review.

The judge’s decision

7.  The applicant was absent at the hearing scheduled before DHCJ Bruno Chan on 12 December 2024.  The judge considered the application on paper and held that none of the applicant’s assertions were properly elaborated or presented with particulars or specifics.  The judge also found no error of law, procedural unfairness or failure to apply high standard of fairness in the decisions of the Director and the Board.  As there is no prospect of success in the proposed judicial review, the judge dismissed the leave application on 9 January 2025.

Grounds of appeal

8.  The applicant stated his grounds of appeal in his written submissions which 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;

(2)     The adjudicator acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

9.  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.

10.  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 9 January 2025 and the applicant was late by two weeks when he took out the summons at the court below on 6 February 2025.

11.  The applicant explained that he was not aware of the relevant time limits and did not receive the letter from court.  The court was informed that the applicant had already left the address stated in his Form 86 and was provided the new address of the applicant by the Immigration Department.  The judge’s decision was sent by post to the applicant’s new address on 9 January 2025 but the mail was subsequently returned by the post office.  It is noted that the applicant stated a different address in his application made to the court below on 6 February 2025.  However, he has never filed any notice of change of address for service to inform the court of his change of address.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).  Besides, the applicant’s ignorance of the rules cannot be accepted as a valid excuse for non-compliance.  Under the circumstances of this case, the applicant’s explanation for the delay is not justifiable.

12.  As the delay is inexcusable, the applicant 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.  The general principles regarding an appeal in a non‑refoulement case 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 failed to provide any evidence to refute the Board’s findings.  He also failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

15.  For the above reasons, there is no prospect of success in the intended appeal.  Therefore, we refuse to grant extension of time to appeal against the judge’s decision of 9 January 2025 and dismiss the summons filed on 12 June 2025.