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

CAMP 227/2023, [2024] HKCA 301

On An Intended Appeal From [2022] HKCFI 3538 &

[2023] HKCFI 1332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 227 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 287 OF 2019)

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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 13 June 2023, the Applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 30 December 2022 (“the Order”) refusing to grant 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 24 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 January 2018 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents before us, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 1A, Rule 4 and Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of India. He last arrived in Hong Kong on 18 September 2015 as a visitor with permission to remain up to 2 October 2015. He did not leave Hong Kong after the expiry of his limit of stay. On 5 October 2015, he surrendered himself to the Immigration Department, and raised a non-refoulement claim on the basis that if he returned to India, he would be harmed or killed by the local supporters of a political party called Trinamood Congress (“TMC”) due to a political dispute with his father who supported a rival party called Communist Party of India (Marxist). Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2022] HKCFI 3538).

5.  By a Notice of Decision dated 30 January 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds, namely, risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 24 January 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form:

“In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to threats from those local TMC supporters which arose from their dispute with his father that it doubted the credibility of his claim that he fled from his home country to seek protection in Hong Kong when shortly before that he had travelled to China twice to purchase electronic goods, that there is no evidence or reason for those TMC supporters to specifically target him when he had no political affiliation at all to attract any adverse interest from them, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.”

7.  On 30 January 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. In the Form 86, the Applicant raised the following grounds of judicial review, which the Judge summarized at §9 of the CALL-1 Form:

“(1) Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) Procedural unfairness in the Board’s failing to meet the greater care and duty owed to a self-represented claimant;

(5) Procedural unfairness in that the Applicant was not given an opportunity to put forward his submission in an oral hearing nor was he invited to submit written submissions for his appeal; and

(6) That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated. That resulted in the Board making groundless speculations that it is safe for the Applicant to return to his home country.”

THE JUDGE’S DECISION

8.  On 30 December 2022, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[10] [The above grounds] are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally manner, or what source of news or COI were not officially recognized or were hearsay or outdated, or how was the Applicant not given the opportunity to make his submissions for his appeal when during his oral hearing before the Board that he was clearly able to make his representations and submissions before the Board without any problem. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such I do not find any of them reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, nor do I find any reasonably arguable basis for his intended application.

…..

[12] In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 38 – 55 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

[13] Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by eth Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[14] In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

9.  On 20 January 2023, the Applicant applied by summons for an extension of time to appeal against the Order. On 25 May 2023, the Judge refused the Applicant’s application, holding, inter alia, that there was no prospect of success in his intended appeal.

THIS APPLICATION

10.  By a summons taken out on 13 June 2023 in the Court of Appeal, the Applicant applied for leave to appeal against the Order out of time. No ground of appeal was given in the summons, or in his affirmation filed in support of the application, other than an allegation that the “documents” (ie the sealed order and the CALL-1 form/judgment) had been lost in the post. The Applicant has also failed to lodge written submissions in support of his application, contrary to the directions given by the Registrar of Civil Appeals dated 13 June 2023.

DISCUSSION

11.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we shall treat the present application as a renewed application for an extension of time to appeal against the Order.

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.

16.  The Applicant has failed to identify any error in the Judge’s decision of 30 December 2022, or 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 13 June 2023 is dismissed.