RE MOHAMMAD TAZUDDIN

CAMP 589/2021

[2022] HKCA 429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 589 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1372 OF 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 5 July 2021[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation, and also lodged a written submission to support his application.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of India aged 39. He arrived in Hong Kong on 14 June 2014 and was given permission to remain as a visitor for 14 days. He overstayed and was arrested by the police on 3 July 2014. He then raised a non-refoulement claim based on his fear of being harmed or killed by his creditors, who are associated with All India Trinamool Congress, which was the ruling party of West Bengal, due to his inability to repay his loan. The details of the applicant’s claim were set out in the decision of the Director at [9]. We will not repeat them.

5.  By his decision dated 24 February 2017, the Director of Immigration rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.

6.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board. A hearing was held on 28 March 2018, during which the applicant testified and answered questions from the Board. By its decision dated 29 June 2018, the Board dismissed the appeal. The Board found the applicant not a credible witness having regard to the significant inconsistencies between the information in his non-refoulement claim form and interview with the Immigration Department and his testimony before the Board as well as some internal inconsistency in his testimony. The Board attached no credence to his evidence regarding the loan, the terms of payment, the amount outstanding, the threats to his life, the vandalism of his shop, or the need for him to leave India to be safe, and held that the centrepiece of his claim was not proved. The Board concluded that the claim failed on all applicable grounds.

7.  On 12 July 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. He did not put forward any grounds for seeking relief.

8.  The Judge heard the application at an oral hearing, during which the applicant claimed that his situation in India had worsened and it had become more dangerous for him to return home. The Judge refused to give leave to apply for judicial review for the reasons set out in [11] to [15] of the Form CALL-1 dated 5 July 2021. In short, the Judge found no reasonably arguable basis to challenge the Board’s finding on the evidence, in the absence of any error of law, irrationality or procedural irregularity identified by the applicant. The Judge, having considered the decisions of the Director and the Board, also did not find any error of law, irrationality or procedural irregularity or failure to adhere to high standards of fairness. The Judge concluded that the intended judicial review had no prospect of success.

9.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.

10.  By a summons filed on 22 July 2021, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge heard the application at an oral hearing on 1 December 2021, and by his decision handed down on 15 December 2021[6] refused the application.

11.  On 23 December 2021, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.

12.  In considering whether to extend time for appealing against the refusal of 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.  The applicant was three days late when he made the application for extension of time on 22 July 2021. Before the Judge, the applicant explained that there was delay in getting the court documents from the letterbox. Like the Judge, we would focus on the merits on the intended appeal given that it is a short delay.

14.  In assessing the merits of the intended appeal, we 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].

15.  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. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  In the summons, the applicant stated that the Judge erred in accepting the Board’s finding, and in failing to consider all applicable grounds for non-refoulement protection, particularly Articles 2 and 22 of the Hong Kong Bill of Rights Ordinance.

17.  The applicant’s written submission quoted extensively from Secretary for Security v Saktheval Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51], and also refers to decisions on the principle of Wednesbury unreasonableness. It submitted that the decision has the effect of finally disposing of the applicant’s case making him liable to be removed. It also said that high standards of fairness applied to the determination of torture claim. It further complained that the Board acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing his credibility.

18.  For the following reasons, we are of the view that the matters put forward by the applicant in the summons and the affirmation are not reasonably arguable:

(1) Assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker. The Board had, for the detailed reasons it gave, found the applicant and his evidence not credible and rejected the primary facts underlying his non-refoulement claim. While the applicant complained that the Judge should not have accepted the Board’s finding, he did not set out specific grounds or particulars to show in what way the Judge had erred.

(2) Similarly, the applicant gave no particulars for his complaint that the Board did not fairly or properly assess his credibility.

(3) Assessment and determination of the merits of a non-reofulement claim is for the primary decision makers, not for the Court. The Court in a judicial review only reviews the decision to see if there is error of law, irrationality or procedural irregularity in the decision maker’s determination. The applicant’s complaint that the Judge failed to assess his claim under the applicable grounds as well as Articles 2 and 22 of the Hong Kong Bill of Right Ordinance is therefore misplaced.

(4) As to the cases and legal propositions quoted in the written submission, it has not been shown how they relate to the intended appeal.

19.  We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.

20.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success. This being the case, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 23 December 2021.