ISHTIAQUE AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 15/2021

[2021] HKCA 1205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 15 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 233 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 June 2020, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to seek judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 26 August 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 14 July 2020.  The application was dismissed by the judge on 7 January 2021[2].

3.  On 12 January 2021, the applicant filed a summons seeking leave to file a notice of appeal against the order of 7 January 2021.  This summons should be treated as a renewed application for extension of time to appeal against the decision of the judge's decision of 30 June 2020 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.  The applicant is a national of India.  He is 50 years old.  He last arrived in Hong Kong on 13 July 2007 as a visitor and subsequently overstayed.  He was arrested by the police on 26 October 2008.  He raised a torture claim on 29 October 2008 on the basis that if he returns to India he will be harmed or killed by his creditors for failing to repay the debts.  His torture claim was later taken as a non-refoulement claim under the unified screening mechanism.

The Director’s decisions

5.  By a Notice of Decision dated 30 December 2014, the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

6.  By a Notice of Further Decision dated 24 October 2016 , the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk[6] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non‑refoulement claim. 

The Board’s decision

7.  The applicant appealed against the Director’s decisions to the Board.  He attended the hearing before the Board on 21 December 2016 but refused to give evidence and to answer questions from the Board at the hearing.  The Board had serious doubt on the credibility of the claim as the applicant’s account of events leading to the indebtedness lacks details and is incoherent.  The Board assessed the future risk of harm from the creditors is very low as they did not harm the applicant’s parents, had not shown real intention to carry out the threats and had not escalated their means to press for payment.  The Board further held that the applicant has not shown that the state is unwilling to protect him and considered that the likelihood for the creditors successfully locating him in other places of India is low. Therefore, the appeal was dismissed by the Board on 1 February 2018.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 13 February 2018 for leave to apply for judicial review against the decisions of the Director and the Board.  He put forward the following grounds for his intended challenge:

(1)  lack of legal representation in his appeal before the Board;

(2)  lack of language assistance in the preparation of his appeal before the Board;

(3)  failure on the part of the Director to give proper explanation for rejecting his claim under BOR 2 risk;

(4)  failure to give any reason why the attendance of any representation of the Director was excused from the oral hearing of his appeal before the Board; and

(5)  failure on the part of the Director to rely on the relevant country of origin information (“COI”) in assessing availability of state protection and whether the situation in India had improved.

The judge’s decision

9.  The application was considered by DHCJ Bruno Chan on the papers.  The judge rejected ground (1) as the high standards of fairness do not require that a non-refoulement claimant must have an absolute right to free legal representation at all stages of the proceedings and the applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board.  The judge considered that Ground (2) was without basis or merits as the applicant was assisted by an interpreter at the hearing before the Board but declined to give evidence or answer any questions from the Board and the applicant has not provided any particulars to demonstrate that the basis of his claim had been wrongly interpreted or understood by the Board.  Ground (3) failed as the Director clearly did in paragraphs 5 to 6 of his Notice of Further Decision explain his reasons for rejecting the applicant’s claim under BOR 2 risk.  The judge considered there is no rationale for insisting that the Director or his representative be present and the applicant failed to demonstrate how he could be prejudiced or adversely affected by the non-attendance of the Director at the hearing before the Board.  Ground (5) was rejected as judge found that the Director did clearly and adequately refer to the relevant COI to properly assess the situation of state and police protection in India in his decision.

10.  As the applicant failed to show any prospect of success in his intended judicial review, the judge dismissed the leave application on 30 June 2020.

Grounds of intended appeal

11.  The applicant stated his grounds of appeal in his affirmation and written submissions which may be summarized as follows[7]:

(1)  The judge erred in the judgment by not taking all relevant circumstances into account.  The applicant has been deprived of the opportunity to understand the judgment and to make proper grounds of appeal because of his education level, his language incapability and the lack of language and legal assistance. The judge has made a biased and erroneous judgment. 

(2)  It is unfair that the applicant was only given the opportunity to advance his grounds on the spot on the day of the oral hearing.  The applicant only understood the judgment on the day of the hearing and did not have time to digest it.

(3)  The applicant was not legally represented at the hearing before the judge so he was not able to understand what he has to say and what he should do about his complaints.

Analysis and disposition

12.  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.

13.  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 30 June 2020.  The applicant took out a summons at the court below on 26 August 2020.  He was late by 17 days exclusive of the court’s summer vacation in August.

14.  The applicant explained to the judge at the hearing below that he did not receive the judgment sent to him by post.  The court sent the judge’s decision dated 30 June 2020 on the day when the decision was handed down by post to both the address stated in the applicant’s Form 86 and the last reported address of the applicant provided to the court by the Immigration Department on 18 June 2020.  The two mails were not returned to the court.  It is noted that the new address provided by the applicant during the hearing at the court below on 12 November 2020 is different from the said two addresses.  However, the applicant has not filed a notice of change of address for service with the court.  Under these circumstances, the applicant’s explanation cannot justify the delay.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]). 

15.  As the delay is inexcusable, the applicant 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.

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 judge had given detailed analysis of his considerations of both the applicant’s grounds, the relevant factual circumstances of the applicant’s case, the decisions of the Director and the Board as well as the applicable legal principles in paragraphs 10 to 19 of his decision dated 30 June 2020.  Therefore, the applicant’s complaint against the judge for failure to take all relevant circumstances into account is untenable.

18.  The applicant complained that he did not have time to digest the judgment so as to advance his grounds because he only understood the judgment on the day of the hearing.  He filed his present application two months after the last oral hearing.  His present grounds of appeal are substantially similar to the ones he previously put forward to the court below.  He has not demonstrated that he could have advanced viable grounds when he was given more time.  Thus, this ground cannot assist the prospect of success of his intended appeal.

19.  As for the ground relating to the lack of legal representation, as correctly stated by the judge in paragraph 10 of his decision on 30 June 2020, it has been well established that an applicant of a non‑refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[8] and the applicant already had the benefit of legal representation in presenting his case to the Director.  Under these circumstances, this ground is unmeritorious.

20.  In addition, the applicant also failed to adduce any evidence to refute the Board’s findings.  For all the above reasons, there is no prospect of success in his intended appeal. We therefore refuse to grant an extension of time to appeal against the judge’s decision of 30 June 2020 and dismiss the summons filed on 12 January 2021.