RASOLONOMENJANAHARY ANJY HARIMALALA v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 1/2023, [2023] HKCA 743

On appeal from [2021] HKCFI 3191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1279 OF 2021)

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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):

Background

1.  On 25 October 2021, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement claim[1].

2.  On 22 November 2021, the applicant filed a summons for extension of time to appeal against the said decision at the Court of First Instance. The summons was dismissed by the judge on 30 June 2022[2].

3.  On 3 January 2023, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4.  The applicant is a national of Madagascar. She entered Hong Kong as a visitor on 29 October 2013 and subsequently overstayed. She was arrested by the police on 23 November 2013 for attempted theft and breach of condition of stay.

5.  She raised a non-refoulement claim on 14 March 2014 which was treated as withdrawn as she failed to submit the non-refoulement claim form within the prescribed time. She requested to re-open her claim on 7 July 2016 and her request was rejected on 15 July 2016[3]. She lodged an application for late filing of appeal against the refusal of re-opening of her claim, which was dismissed on 19 January 2018[4].

6.  The applicant then lodged a subsequent claim on 10 August 2020 on the basis that she will be ill-treated or killed by the suppliers of her boyfriend’s business if she returns to her country. She suspected that her boyfriend was having illegal dealings with some government officials in secretly exporting precious woods which was prohibited by law.

The decisions of the Director and the Board

7.  By a Notice of Decision dated 30 March 2021, the Director rejected the applicant’s claim on all applicable grounds including torture risk[5], BOR 2 risk[6], BOR 3 risk[7] and persecution risk[8].

8.  The applicant appealed against the Director’s decision to the Board. She attended the hearing before the Board on 2 July 2021. The Board considered that the applicant’s claims are incredible and unreliable. The Board found that she did not have convincing explanation for her failure to submit documentary proof of her claim when she has been made aware of the importance of submitting supporting documents for more than 5 years. The Board assessed that her allegations are just bare assertions. Besides, the Board found her explanation for returning to Madagascar several times after she was badly treated when she had every opportunity not to return unconvincing. The Board was amazed she did not even know the name of her boyfriend’s company when she had been following up shipment order and had handed bills to customers for more than one year. The Board was not persuaded the applicant has established that she would face any risk of ill-treatment by the enemies or the Madagascar government if she is refouled to Madagascar. The Board further found that state protection would be available to the applicant in her country and it is not unreasonable for the applicant to relocate to other cities in Madagascar. Therefore, the Board dismissed the appeal on 19 July 2021.

The intended judicial review

9.  On 13 September 2021, the applicant filed a Form 86 and an affirmation in HCAL 1279/2021 to seek leave to bring judicial review against the decisions of the Director and the Board. She stated in her supporting affirmation that she cannot return to her home country because she is afraid she might be tortured or killed.

The judge’s decision

10.  DHCJ Bruno Chan dealt with the application on paper. The judge found that the applicant does not have any reasonably arguable basis to challenge the Board’s decision in that the Board essentially rejected her claim on its adverse finding on her credibility. The judge also found no error of law, procedural unfairness or failure to apply high standards of fairness in the decisions of the Director and the Board. As there is no prospect of success in the applicant’s intended judicial review, the judge dismissed the leave application on 25 October 2021.

Grounds of intended appeal

11.  The applicant stated the following grounds of appeal in her affidavit of 23 December 2022:

(1)  The judge was wrong in fact and in law in holding that there was no state acquiescence or involvement;

(2)  The judge failed to provide detailed reason in support of his decision.

12.  The Registrar of Civil Appeals directed the applicant to lodge written submissions by 17 January 2023. She has not lodged any submissions to date.

Analysis and disposition

13.  In considering whether to extend time to appeal 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 25 October 2021 and the applicant was late by 2 weeks when she took out the summons for extension of time to appeal at the court below on 22 November 2021. She explained that she was late in filing the appeal as she has been detained at the Castle Peak Bay Immigration Centre without legal representation and that she had to seek assistance for her application[9].

15.  Given the circumstances, we would focus on assessing whether the applicant can show there is reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[10].

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.  The applicant’s grounds in the present application are devoid of merits. The judge has not made any determination concerning state acquiescence or involvement as alleged by the applicant. The judge also did provide sufficient reasons for the refusal of leave in §§13 to 15 of the decision dated 25 October 2021. The applicant cannot show that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in the decision.

18.  For the above reasons, we agree with the judge there is no prospect of success in the intended appeal and it would be futile to extend time for what appears to be a hopeless appeal. We therefore dismiss the summons filed on 3 January 2023.