ALAM IMTIAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 527/2022, [2023] HKCA 630

On appeal from [2022] HKCFI 539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 527 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2196 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 1 March 2022, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to seek leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 22 September 2022, the applicant filed a summons for extension of time to appeal against that decision at the Court of First Instance. The applicant’s summons was dismissed by the judge on 27 October 2022[2].

3.  On 8 December 2022, the applicant filed the present summons seeking leave to apply for judicial review. This application should be treated as a renewed application for extension of time to appeal against the judge's decision of 1 March 2022: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8.

4.  The applicant is a national of India. He was arrested by the police on 5 November 2007. He lodged a torture claim on 15 November 2007, which was taken as a non-refoulement claim upon the commencement of unified screening mechanism. His claim was made on the basis that, if refouled, he would be harmed or killed by his elder brothers because of a land dispute.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 6 August 2014, the Director of Immigration (“the Director”) rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

6.  The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 23 April 2015. The Board considered that the acts complained of had not attained the requisite minimum level of severity for non-refoulement protection. The Board further found that the applicant’s problem is a family dispute which did not involvement any public official or state acquiescence. The Board also assessed that state protection and internal relocation alternatives are available to the applicant in India. The Board decided that the applicant failed to substantiate his case under the applicable grounds and dismissed his appeal on 17 February 2016 (“the Board’s 1^st decision”).

7.  On 19 December 2016, the Director invited the applicant to submit additional facts which he considers relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk[6] in case he has omitted any relevant facts in relation thereto before. By a Notice of Further Decision dated 4 May 2017, the Director rejected the applicant’s claim on all applicable grounds including on BOR 2 risk in the absence of response from him to the said invitation.

8.  The Board considered the applicant’s BOR 2 risk in an appeal hearing on 26 March 2018. The Board found no evidence to show there is a personal and real risk of the applicant being subjected to a BOR 2 risk on his return to India. Thus, the Board dismissed the appeal on 3 May 2018 (“the Board’s 2^nd decision”).

The intended judicial review

9.  On 10 October 2018, the applicant filed a Form 86 and an affirmation in HCAL 2196/2018 to seek leave to bring judicial review against the Board’s 2^nd decision out of time. He did not put forward any grounds for his intended challenge.

The judge’s decision

10.  DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The judge found that the applicant does not have any valid ground to challenge the Board’s decision. The judge also found there is no error of law or procedural unfairness in the Board’s decision. As there is no realistic prospect of success in the applicant’s intended judicial review, the judge refused to grant extension of time for the applicant to seek leave to bring judicial review and dismissed the application on 1 March 2022.

Grounds of intended appeal

11.  The applicant stated in the summons that he does not want to return to his country because his life is still in danger there and he believes that the judge reached the decision wrongly in assessing his non-refoulement claim, and that the decision was unreasonable and unfair.

12.  His further contentions in the 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;

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

Analysis and disposition

13.  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.

14.  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 1 March 2022 and the applicant was late by about 5 months when he took out the summons for extension of time to appeal at the court below on 22 September 2022, exclusive of the court’s summer vacation in August. He explained that he did not receive any letter from the court so he did not know when his application was refused.

15.  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). The court sent the decision to the applicant’s address by post on the date of handing down the judgment on 1 March 2022 and the mail was not returned to the court by the post office. Under these circumstances, the applicant’s explanation for the substantial delay is not justifiable.

16.  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.

17.  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.

18.  The applicant has not identified any specific errors, unreasonableness or unfairness in the judge’s decision. He 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 in the decision. Furthermore, his written submissions are just bare assertions without evidence in support.

19.  We are firmly of the view there is no prospect of success in the intended appeal against the judge’s decision of 1 March 2022. We therefore dismiss the summons for extension of time to appeal filed on 8 December 2022.