RAMADHAN BAKARI RASHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 230/2022

[2022] HKCA 1782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 230 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 54 OF 2018)

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

1.  On 7 August 2020, Campbell-Moffat J dismissed the applicant’s application for leave to seek judicial review concerning his non-refoulement claim which was made out of time[1].

2.  On 22 December 2020, the applicant filed a summons for leave to appeal out of time against that decision at the Court of First Instance.  The applicant’s summons was dismissed by the judge on 3 May 2021[2].

3.  On 5 July 2022, the applicant filed a renewed application for leave to appeal out of time with the Court of Appeal. 

4.  The applicant is a national of Tanzania.  He is 35 years old.  He entered Hong Kong on 2 February 2012 as a visitor and subsequently overstayed.  He was arrested by the police on 7 August 2012.  On 3 March 2014, he raised a non-refoulement claim on the basis that he will be harmed or killed by his creditor if he returns to Tanzania because he fails to repay the loan.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 24 June 2016, the Director of Immigration (“the Director”)  rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].  On 8 July 2016, the applicant appealed against the Director’s decision to the Torture Claims Appeal Board (“the Board”). 

6.  By a Notice of Further Decision dated 14 July 2017, the Director rejected the applicant’s claim on BOR 2 risk[6] in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim. 

7.  The applicant attended the hearing before the Board on 29 August 2017.  The Board considered the appeal on all applicable grounds.  Giving the benefit of doubt to the applicant, the Board accepted that the creditor may seek to harm the applicant and that he may find it difficult to obtain police assistance in Tanzania.  However, the Board considered that he should be able relocate to other places in Tanzania to avoid the risk of harm. The Board held there is no evidence to show that the creditor has the resources to locate the applicant in other places and it would not be unduly harsh for him to relocate to other cities.  Therefore, the Board dismissed the appeal on 27 September 2017.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 11 January 2018 for leave to apply for judicial review against the decision of the Board, outside the three-month limit.  He did not provide any specific grounds for the intended judicial review.  He also did not apply for extension of time or provide any explanation for the delay.

The judge’s decision

9.  Campbell-Moffat J dealt with the application on paper.  The judge found there is no reason before the court as to why extension of time should be given and there is no merit in the applicant’s claim.  Therefore, the judge dismissed the leave application on 7 August 2020. 

10.  The applicant filed another Form 86 with the court below on 12 May 2021.  Master Hui directed that the applicant is not allowed to file a repeated application.

Grounds of intended appeal

11.  The applicant stated the 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 Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

12.  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.

13.  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 7 August 2020.  The applicant was late by more than 3 months, exclusive of the court’s summer vacation in August 2020, when he took out a summons for leave to appeal out of time at the court below on 22 December 2020.

14.  Pursuant to Order 59, rule 14(3)  of the Rules of the High Court, where an ex parte application has been refused by the court below, an application for a similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal. The applicant’s application for extension of time to appeal was refused by the court below on 3 May 2021.  He was late for about 7 months when he made the present application to the Court of Appeal on 5 July 2022. 

15.  The applicant explained that he did not receive the order and judgment within 14 days from 7 August 2020.  He did not state when he actually received the judgment and order.  He also did not provide any explanation for his substantial further delay in making the renewed application with the Court of Appeal.  Under these circumstances, the applicant’s delay is inexcusable.  Therefore, he must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

16.  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.

17.  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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

18.  The applicant’s grounds are without basis.  In particular, the Board had given him the benefit of the doubt and accepted the main parts of his case.  The appeal was not dismissed for lack of credibility.

19.  The applicant also failed to demonstrate 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. 

20.  As there is no prospect of success in his intended appeal, it would not be appropriate to allow the applicant to bring an appeal out of time.  We therefore dismiss the summons filed on 5 July 2022.