MOHAMMAD ANSAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 347/2023, [2024] HKCA 182

On An Intended Appeal From [2023] HKCFI 1968 &

[2023] HKCFI 2836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 347 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 980 OF 2019)

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J U D G M E N T

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

1.  On 15 November 2023, the Applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”)  dated 15 November 2023 refusing to grant him an extension of time to appeal against the Judge’s earlier order dated 8 August 2023 (“the Order”)  refusing to grant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 30 April 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 28 November 2016 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents before us, 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 2 October 2007.  He did not depart after the expiry of his limit of stay.  On 27 October 2007, he was arrested by the police for overstaying.  He raised a torture claim on the basis that if he returned to India, he would be harmed or killed by Seikh, the son of a moneylender, due to an outstanding loan, and a police officer whose wife had been imprisoned for inflicting harm on him.  After his torture claim[1] had been rejected on 21 February 2012, he sought non-refoulement protection on the same basis.  Details of the Applicant’s claim have been summarised by the Judge at §§1-6 of the CALL-1 Form ([2023] HKCFI 1968).

5.  By a Notice of Decision dated 28 November 2016, the Director rejected the Applicant’s non-refoulement claim on all remaining applicable grounds, namely, BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board.  On 30 April 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §§9-12 of the CALL-1 Form:

“[9] The applicant appealed the Director’s Decision to the Board. On 26 March 2018, the Board conducted an oral hearing for his appeal, during which the Board clarified certain matters with him [41]. The applicant supplemented that, inter alia, there was a warrant issued against him in 2014 [42].

[10] Having considered all the evidence, the Board found that Seikh never intended to harm or kill him. Instead, he only intended the applicant to repay the loan [46]. Meanwhile, there was no evidence that Saleem had ever chased the applicant for repayment and it had been seven to eight years since the applicant left India [47]. Even taking the applicant’s case to the highest, the Board noted that Saleem did not cause any troubles to the applicant’s parents who had been repaying the loan. This was a strong indicator that Saleem only intended the settlement of the loan [48]. In these premises, the applicant’s claimed risk of harm from Saleem was groundless [49].

[11] Insofar as his claimed fear of harm from the police officer was concerned, the Board found that, on the applicant’s evidence, the grudge was in fact between the applicant’s parents and the police officer. Meanwhile, there was no evidence that the attackers who assaulted the applicant were sent by the police officer [50]-[51]. There was also no indication that the police officer continuously harassed the applicant’s parents [52]. As to the warrant issued in 2014, the Board considered that, if it was legally issues, it was for the Indian authorities to deal with [53]. In any event, internal relocation was a viable option for the applicant [61]-[66].

[12]  In light of the aforesaid, the Board concluded that the applicant’s claim was without merits and thus dismissed his appeal.”

7.  On 12 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of relief was given in the Form 86.  In his affirmation filed in support of the leave application, the Applicant said that he was not satisfied with the decisions of the Director and the Board as they had not carefully considered his case and their decisions were made “on Internet bases”.

THE JUDGE’S DECISION

8.  On 8 August 2023, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[14] In his affirmation in support of his application, he said he is not satisfied with the Director’s Decision and the Board’s Decision as they were made without careful consideration of his case.

[15] As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 30 July 2018. The delay is more 8 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. However, I shall first consider the merits of the applicant’s case.

…

[19] The Board had assessed his evidence and, for the reasons given above, rejected his evidence on the facts of his claim. The ground set out in paragraph 14, supra is only his opinion without any evidence in support. It is not valid to challenge the Board’s Decision.

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

9.  On 15 September 2023, the Applicant applied by summons for an extension of time to appeal against the Order.  On 15 November 2023, the Judge refused the Applicant’s application, holding that the Applicant had not been able to raise any valid reasons to challenge the Board’s Decision, and there was not any realistic prospect of success in his intended appeal.

THIS APPLICATION

10.  By a summons taken out on 15 November 2023 in the Court of Appeal, the Applicant applied for leave to appeal against the Judge’s order of 15 November 2023.  In the summons, the Applicant alleged that the present case was a clear case of unfair attitude shown by the Judge, and he failed to attain the high standards of fairness required by the Wednesbury test in his decision.

11.  In his written submissions dated 29 November 2023, the Applicant sets out some general principles of law relating to non-refoulement claims, but fails to explain how those principles are relevant or applicable to his case.

DISCUSSION

12.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we shall treat the present application as a renewed application for an extension of time to appeal against the Order.

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 an 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 cases 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.

17.  The Applicant’s complaints against the Judge or his decision are mere general allegations without particulars.  The Applicant has failed to identify any error in the Judge’s decision of 8 August 2023, or raise any viable ground of appeal against the Order.

18.  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

19.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 15 November 2023 is dismissed.