MOHAMMED FAIZ v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

CAMP 208/2022

[2022] HKCA 1200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 208 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 539 OF 2019)

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JUDGMENT

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

1.  On 23 June 2022, the Applicant took out a summons with a supporting affirmation applying for an extension of time to appeal against the order of Deputy High Court Judge To (“the Judge”) dated 19 January 2022 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 13 February 2019, which dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 April 2018.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under 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 August 2014 and was permitted to stay until 13 September 2014.  He overstayed for about two weeks and was arrested by the Police.  He was referred to the Immigration Department on 26 September 2014. On the following day, he made a non-refoulement claim by written representation.  On 2 March 2018, he completed a formal non-refoulement claim form alleging that, if he returned to India, he would be harmed or killed by his late business partner (Muhammad)’s family who wrongly accused him of causing Muhammad’s death in order to take over their business.  Details of the Applicant’s claim have been summarised by the Judge at §§1-13 of the CALL-1 Form ([2022] HKCFI 180).

5.  By a Notice of Decision dated 9 April 2018, the Director rejected the Applicant’s non-refoulement claim on the following applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

6.  The Applicant appealed the Director’s decision to the Board.  On 13 February 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 can be seen from §§14-18 of the CALL-1 Form:

“[14] In assessing his credibility and weighing his evidence, the Board had given allowance to the fact that the Applicant may understandably be bewildered, frightened and even desperate, that he may not understand the process or language spoken at various stages in the process and this may affect the consistency and veracity of his evidence. The Board is also mindful of the fact that it is quite possible for the centrepiece of an applicant’s claim to stand despite the presence of some exaggeration, uncertainty or even untruthfulness. But the Board was satisfied that this was not the case with the Applicant’s evidence. Because of the many inconsistencies in his evidence and the inherent improbability of his assertions, the Board formed the view that the Applicant was not a witness of truth and that he had fabricated claims in relation to Muhammad and his family.

[15] In addition to the inconsistencies mentioned in the above section which cast doubt on the Applicant’s account of threat and assault, the Board found many other inconsistencies between his evidence given in the NCF and that at the oral hearing before the Board. Most importantly, he changed his evidence about his involvement in the business. He resiled from his allegation that he was responsible for the operation of the business and conceded that he was not in charge of operating the business, not even its day-to-day sales to customers unless Muhammad was out. He tried to boost his participation by asserting he had put 30,000 Indian rupees into the business. That was after he had already become a partner. That amount was about half the price of a smart phone and could not persuade the Board that it would be sufficient to make him an equal equity partner in the business. His case of fear and harm is premised on Muhammad’s family suspecting him of killing Muhammad in order to take over Muhammad’s business. Given his level of education and experience and the totality of the evidence, the Board was not satisfied that the Appellant had proved he was in partnership with Muhammad. The Board found he was just an employee of Muhammad. Accordingly, the Applicant’s case crumbled.

[16] The Board was unable to accept the basis of the Applicant’s claim that Muhammad’s family thought he was somehow to blame for Muhammad’s death as the Board considered he had nothing to gain from Muhammad’s death.

[17] The Board also considered the Appellant’s evidence as to whether Muhammad’s family knew him, where he stayed after Muhammad’s death, when he went to hospital for treatment of his injuries occasioned by the assault ambiguous and incredible.

[18]     The Board was not satisfied that the Applicant was in business partnership with Muhammad; that Muhammad’s family blamed him for Mohammad’s death; that he was ever assaulted by Mohammad’s brother or anyone else associated with Muhammad’s family; that he had been to hospital for examination or treatment; and that he is in adverse interest to anybody in India.  Having reached these findings, there is no factual basis to support the Applicant’s claim under any of the four applicable grounds under the USM.  The Board therefore found there is not any real risk that the Applicant would face any of the proscribed forms of harm should he return to India.  It also found it reasonable and viable for the Applicant to relocate to another part of India.  For these reasons, the Board dismissed his appeal against the Director’s decision in the Notice.”

JUDGE’S DECISION

7.  The Applicant subsequently filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

8.  On 19 January 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“Grounds for judicial review

[19] In his affirmation filed in support of his application, the Applicant exhibited the Director’s Notice, the Decision of the Board and some documents from the hearing bundle before the Board. Obviously, he disagreed with those decisions, but he did not put forward any specific grounds in support of his intended application for judicial review. Presumably, he is obviously seeking to challenge the Board’s conclusion and finding of fact. In his letter dated 28 May 2020, he asked for time to file additional documents which were in his home in India which could not be made available to him because of a typhoon and flood. One year and seven months lapsed. He did not file any document.

The applicable legal principles

[20] The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration.

Conclusion

[21] Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Board had carefully assessed the Applicant’s credibility and weighed the evidence.  It found the Applicant was not a witness of truth and did not accept his evidence.  As stated in paragraph 18, the Board was not satisfied that the Applicant had discharged the burden of proving the factual basis required to support his claim of fear from harm.  It was on that basis that the Board found that there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  This conclusion was further supported by availability of internal relocation.  Basically, the Applicant failed to discharge her burden of proving his fears and risks.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Court could not identify any procedural unfairness.  There is no realistic prospect of success in the proposed judicial review.”

9.  On 21 June 2022, the Judge refused the Applicant’s application by summons dated 13 April 2022 for an extension of time to appeal against the Order.  The Judge considered the Applicant’s delay of over 2 months to be inordinate and very substantial, and he had no valid explanation for the delay.  The Judge took the view that the only reasonable inference was that the Applicant’s intended appeal was a deliberate abuse of the legal process for some secret motive.  The Judge also considered that the Applicant’s intended appeal was wholly unarguable and had no prospect of success.  See [2022] HKCFI 1843, at §§10, 20 and 22.

THIS APPLICATION

10.  By a summons taken out on 23 June 2022, the Applicant renewed his application for an extension of time to appeal against the Order to the Court of Appeal.  In his supporting affirmation filed on the same date, the Applicant stated that he would like to appeal because he would face hardship if he was refouled back to his country, and that his life was still in danger in his country.

11.  In his 4-page written submissions dated 7 July 2022, the Applicant made generic submissions on some general principles of law relating to non-refoulement claims.  He claimed that the Board did not act in a procedurally fair manner in dealing with his application and failed to properly assess his credibility.

DISCUSSION

12.  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.

13.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.  The court’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.

15.  We agree with the Judge that the Applicant’s delay of over 2 months is substantial, and he has failed to provide any valid explanation for the delay.

16.  Further, the Applicant has failed to point to or substantiate any alleged error in the Judge’s decision of 19 January 2022, or raise any viable ground of appeal against the Order.

17.  There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

18.  The application for extension of time to appeal is refused, and the Applicant’s summons of 23 June 2022 is dismissed.