RAJU SHEIKH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 77/2024, [2024] HKCA 700

On An Intended Appeal From [2023] HKCFI 438 &

[2024] HKCFI 503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 77 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 250 OF 2019)

________________________

____________________

____________________

J U D G M E N T

____________________

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

1.  On 25 April 2024, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 7 March 2023 (“the Order”) refusing to grant the Applicant leave to apply for judicial review.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 9 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 November 2016 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of India. He entered Hong Kong as a visitor on 30 October 2007 and was permitted to stay until 13 November 2007. On 31 October 2007, he was arrested by the police for the offence of possession of dangerous drugs. He was later sentenced to four months’ imprisonment suspended for three years. On 30 January 2008, he lodged a torture claim, which was taken as a non-refoulement claim after the commencement of the unified screening mechanism on 3 March 2014. His claim was made on the basis that, if refouled, he would be harmed or killed by a moneylender named Akbar. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2023] HKCFI 438).

5.  By a Notice of Decision dated 3 March 2015, the Director rejected the Applicant’s non-refoulement claim on the following applicable grounds: risk of torture[1], BOR 3 risk[2], and persecution risk[3] (“the Director’s First Decision”). By a Notice of Further Decision dated 9 November 2016, the Director rejected the Applicant’s non-refoulement claim on the remaining applicable ground: BOR 2 risk[4] (“the Director’s Second Decision”).

6.  On 31 March 2015, the Applicant appealed the Director’s First Decision to the Board. The Applicant was 14 days late for lodging the appeal. The Board rejected the Applicant’s explanation for the delay, and refused to extend time for the Applicant to appeal the Director’s First Decision.

7.  The Applicant also appealed the Director’s Second Decision to the Board. On 9 January 2019, 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 were summarised by the Judge at §12 of the CALL-1 Form, as follows:

“The Board examined his oral evidence with those stated in his written statements. It found that there were several significant inconsistencies in relation to his background and the details of the loan, as well as the alleged assault from Akbar [27]-[40]. In light of these unexplained discrepancies, the Board refused to accept his claim under BOR 2 risk [41]. Even taking the applicant’s evidence at its face value, the Board still rejected his claim because (i) the applicant did not sustain injuries that attained a minimum level of severity [43]; (ii) Akbar and his men had no intention to cause serious harm or even kill the applicant [44]-[47]; (iii) state protection would be available to him [48]-[50]; and (iv) internal relocation was a viable alternative [51]-[54].”

8.  On 28 January 2019, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision, stating in his supporting affirmation that he could not go back to his country at that moment and asked for permission to stay in Hong Kong.

THE JUDGE’S DECISION

9.  On 7 March 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“19. There is no valid reason to challenge the Board’s Second Decision.

20. The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

10.  On 5 December 2023, the Applicant applied by summons for an extension of time to appeal against the Order. On 1 March 2024, the Judge refused the Applicant’s application, holding that the Applicant had not been able to raise any valid reason to challenge the Board’s Decision, and there was no realistic prospect of success in his intended appeal.

THIS APPLICATION

11.  By a summons taken out on 25 April 2024, the Applicant applied for an extension of time to appeal against the Order. In his supporting affirmation filed on the same date, the Applicant stated that the decision of the Judge was unfair to him because he was not given any opportunity to clarify his case and situation in his home country, and he was an unrepresented litigant in person. He also requested the court to allow his appeal out of time and give him a chance to explain.

12.  The Applicant has failed to lodge any written submissions in support of his appeal contrary to the directions of the Registrar of Civil Appeals dated 25 April 2024.

DISCUSSION

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 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. The Applicant’s complaints against the decisions of the Director and the Board are general allegations without particulars. 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’s complaint that he was not given any opportunity to clarify his case and the situation in his home country has no merits. He did not request for an oral hearing of his leave application in his Form 86, and failed to set out any reasonably arguable ground of judicial review in either his Form 86 or in his supporting affirmation of 28 January 2019. The Judge was entitled, in the exercise of his discretion, to deal with the leave application on paper without an oral hearing pursuant to Order 53, rule 3(3) of the Rules of the High Court.

18.  The Applicant has failed to identify any error in the Judge’s decision of 7 March 2023, or raise any viable ground of appeal against the Order.

19.  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

20.  The application for extension of time to appeal is refused, and the Applicant’s summons of 25 April 2024 is dismissed.