SK SHAHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 416/2022

[2023] HKCA 439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 416 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2069 OF 2018)

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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):

1.  On 30 March 2022, Deputy High Court Judge P Li refused the applicant’s application for leave to seek judicial review against the decisions of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 30 September 2022, Deputy High Court Judge To dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show he has any reasonable prospect of success in his intended appeal[2].

3.  On 7 October 2022, the applicant filed the present summons with the Court of Appeal challenging the decision of the court. In light of the decision Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of DHCJ P Li dated 30 March 2022.

4.  The applicant is a national of India. He is 38 years old. He entered Hong Kong as a visitor on 24 March 2014 and was subsequently arrested for overstaying on 13 April 2014. He raised his non-refoulement claim on the basis that he would be ill-treated or even killed by his creditors for a loan to expand his business.

5.  By a Notice of Decision dated 30 October 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim under all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5], and persecution risk[6].

6.  The applicant appealed against the Director’s Notice of Decision to the Board and attended the hearing before the Board on 6 August 2018. In essence, the Board did not find the applicant to be a truthful witness. This included, for example, the date of when the loan was made by the applicant. At the hearing, the applicant told the Board it was in 2012 while before the Director, he claimed it was in 2008. His inconsistent testimony on material and important matters undermined his credibility. The Board found the applicant had fabricated his claims to apply for non-refoulement. As it was found that the applicant does not face a real risk of the proscribed harm if refouled to India, it was not necessary for the Board to make findings in relation to internal relocation. The Board dismissed the applicant’s appeal on 24 September 2018.

The judge’s decision

7.  On 28 September 2018, the applicant applied for leave to apply for judicial review against the Board’s decision. The applicant did not supply any grounds for his intended challenge and simply attached the decisions of the Director and the Board to his affirmation in support. As the applicant did not request an oral hearing, DHCJ P Li dealt with the matter on paper.

8.  DHCJ P Li reviewed the decision of the Board and found no error or procedural unfairness in its decision. While the applicant sought an extension of time alleging that the documents in support of his application were in India and was not able to obtain them due to the pandemic, the judge did not accept this allegation. As more than 5 years had elapsed since the applicant came to Hong Kong, the judge took the view there was sufficient time for the applicant to obtain any essential documents in support of his non-refoulement claim. The judge held in view of the circumstances, there is no reasonably arguable basis in the applicant’s intended challenge and dismissed the leave application for judicial review on 30 March 2022.

Grounds of appeal

9.  The applicant did not provide any grounds of appeal in his summons or his supporting affirmation and merely repeated that he would be in danger if he is returned to India. As for his written submissions, his arguments 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; and

(2)  the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

10.  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.

11.  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 judge’s order was made on 30 March 2022. The applicant took out a summons in the court below on 15 July 2022. He was late for more than 3 months.[7] This is substantial and no valid explanation is provided by the applicant for the delay. He claimed he had not received the judgment of 30 March 2022 until he collected it from the court on 15 July 2022. The judgment was sent to his last known address in Fuk Wa Street provided to the court, which is different from the address in Nathan Road he stated in his summons and supporting affirmation in July 2022. DHCJ To drew the inference the applicant did not receive the judgment because he had moved without updating the court of his new address.

12.  As the applicant’s delay is inexcusable, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

13.  In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.  The applicant’s submissions are just repetition of legal principles and cases without any elaboration how they might apply to his case. No evidence is adduced by the applicant to refute the Board’s findings on fact and credibility. Nor has the applicant put forward any grounds to indicate any error made by the Board. No viable ground has been advanced to reverse the decision of the judge.

16.  For the above reasons, there is no prospect of success in the applicant’s intended appeal, let alone any real prospect of success. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 30 March 2022 and dismiss the summons filed on 7 October 2022.