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CAMP 137/2023, [2023] HKCA 784
On An Intended Appeal From [2022] HKCFI 3040 &
[2023] HKCFI 301
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 137 OF 2023
(ON AN INTENDED APPEAL FROM HCAL NO 2356 OF 2018)
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BETWEEN
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RAHMAN RIZAUL |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative
Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative |
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Interested Party |
________________________
| Before: |
Hon Au and Chow JJA in Court |
| Date of Written Submissions: |
14 April 2023 |
| Date of Judgment: |
27 June 2023 |
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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 3 April 2023, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court K W Lung (“the Judge”) dated 25 October 2022 (“the Order”) refusing to grant him 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 19 October 2018, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 25 July 2016 and 22 December 2016 rejecting the Applicant’s non-refoulement claim.
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 on 31 December 2013 and was permitted to stay as a visitor until 14 January 2014. He did not depart from Hong Kong after the expiry of his limit of stay. On 25 January 2014, he was arrested by the police for overstaying. On 26 January 2014, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his creditor because he was unable to repay a debt owed to the creditor. Details of the Applicant’s claim have been summarised by the Judge at §§4-5 of the CALL-1 Form.
5. By a Notice of Decision and a Notice of Further Decision dated 25 July 2016 and 22 December 2016, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decisions”).
6. The Applicant appealed the Director’s Decisions to the Board. On 19 October 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decisions (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§12-13 of the CALL-1 Form, as follows:
“[12] Having considered the relevant legal principles and the applicant’s evidence, the Board made the following findings. First, the loan was between the applicant and Roy without the involvement of the political group or the state. Meanwhile, the applicant was not harmed by Roy given that he had the opportunity to do so [32]. Secondly, the applicant’s claim lacked credibility as he was unable to provide details of the loan or the information about Roy [33]-[39]. Thirdly, the country of origin information supported that state protection would be available to the applicant [43]-[53]..
[13] In these circumstances, the Board refused to accept that the loan was connected with the political group. It also rejected the existence of the loan and the threats from Roy. Even taking the applicant’s claim to the highest, the Board found that he failed to prove that Roy intended to cause serious harm or kill him or that the ill-treatments had attained a minimum level of severity. In any event, the threats or harms were localized [60]-[76].”
7. On 25 October 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of judicial review was given in the Form 86 or in the Applicant’s supporting affirmation of the same date.
THE JUDGE’S DECISION
8. On 25 October 2022, the Judge refused to grant the Applicant leave to apply for judicial review for the following reasons:
“[20] There is no valid reason to challenge the Board’s Decision.
[21] 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.
[22] The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”
9. On 19 January 2023, the Applicant applied by summons for an extension of time to appeal against the Order. On 16 February 2023, the Judge refused the application, holding that there was no realistic prospect of success in his intended appeal.
THIS APPLICATION
10. By a summons taken out on 3 April 2023 in the Court of Appeal, the Applicant applied for an extension of time to appeal against the Order.
11. In his written submissions dated 14 April 2023, the Applicant sets out some general principles of law relating to assessment of non-refoulement claims, but fails to explain how those principles are applicable to his case.
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 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)).
15. 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. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
16. The Applicant has failed to identify or show any error in the Judge’s decision of 25 October 2022, and has failed to raise any viable ground of appeal against the Order.
17. 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
18. The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 3 April 2023 is dismissed.
(Thomas Au)
Justice of Appeal
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(Anderson Chow)
Justice of Appeal
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The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
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