SHAH MOHAMMED KAMALUDDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 56/2022

[2022] HKCA 1006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 56 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1471 OF 2018)

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JUDGMENT

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

1.  On 16 February 2022, the Applicant took out a summons with a supporting affirmation seeking an extension of time to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 8 December 2021 (“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 13 July 2018, which dismissed the Applicant’s appeal against the further decision of the Director of Immigration (“the Director”) dated 24 May 2017.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral 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 sought to enter Hong Kong on 6 March 2015 but was refused permission to land.  While pending removal, he lodged a non-refoulement claim, alleging that if refouled, he would be harmed or killed by a local leader of Trinamool Congress Party and/or his people.  Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2021] HKCFI 3655).

5.  By a Notice of Decision dated 20 May 2015, the Director refused the Applicant’s non-refoulement claim based on the risk of torture[1], BOR 3 risk[2], and persecution risk[3].  The Applicant appealed against the Director’s decision to the Board.  On 28 February 2017, the Board dismissed the Applicant’s appeal and affirmed the Director’s decision.  The Board found that the Applicant’s problem in India was private in nature and there was no evidence of state involvement. In any event, internal relocation was available to the Applicant (see Board’s decision at §§47-54).

6.  On 4 May 2017, the Director on his own initiative invited the Applicant to submit any additional facts which might be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including BOR 2 risk[4].  In the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 24 May 2017 rejected his BOR 2 claim.

7.  The Applicant appealed against the Director’s further decision to the Board.  On 13 July 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s further decision (“the Board’s BOR 2 Decision”). The Board found that there was no evidence to show that the Applicant would be at risk of BOR 2 harm if refouled, and that even if there was such a risk, it would be reasonable and safe for the Applicant to relocate within India (see Board’s BOR 2 Decision at §§12-13).

JUDGE’S DECISION

8.  On 26 July 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s BOR 2 Decision.

9.  On 8 December 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“15. He has submitted no valid ground to assist his application. The Board has considered the facts in the Board’s Decision, which forms the factual basis of his claim. Having considered the facts, the Board concluded that there was no merit in his appeal against the Director’s BOR 2 Decision.

16. The Court does not find any error of law or procedural unfairness in the Board’s BOR 2 Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

10.  On 15 February 2022, the Judge refused the Applicant’s application by a summons dated 10 January 2022 for an extension of time to appeal against the Order.

THIS APPLICATION

11.  By a summons taken out on 16 February 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 wrote that he did not want to return to his country because his life was still in danger.

12.  In his 4-page written submissions dated 1 March 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

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 extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

15.  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.

16.  The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision dated 8 December 2021, and has failed to raise any viable ground of appeal against the Judge’s decision in his summons or affirmation or written submissions.

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 16 February 2022 is dismissed.

[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.