RE ALI MOHAMMED RASHID

CAMP 144 2022, [2023] HKCA 856

On Appeal From [2020] HKCFI 2830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 144 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1492 OF 2018)

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J U D G M E N T

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

1.  On 18 November 2020, DHCJ C P Pang (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim and dismissed his leave application. (“the JR Decision”) [2020] HKCFI 2830. Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 4 December 2020 for extension of time to appeal against the JR Decision.  The summons was dismissed by DHCJ To on 25 February 2022 [2022] HKCFI 514.

3.  On 6 May 2022, the applicant filed his summons in CAMP 144/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 6 May 2022, the applicant lodged his written submissions on 19 May 2022.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of India.  He arrived in Hong Kong on 15 July 2008 and was permitted to stay as a visitor until 29 July 2008.  He overstayed and was arrested by the police on 26 September 2008.  He was then referred to the Immigration Department for investigation and on 28 September 2008, he lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”) by way of written representation, alleging that if refouled, he would be harmed or killed by Muhammed Ansar (“Ansar”) and his family members because the applicant had injured Ansar during a fight arising from a dispute in a cricket game.  The claim under the Convention was later taken to be a non-refoulement claim and was processed under the unified screening mechanism.  The factual background of this case was succinctly summarised by the Judge at [3] of the JR Decision.

7.  By a Notice of Decision dated 18 May 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and attended an oral hearing on 22 December 2017.  In its decision dated 23 July 2018, the Board dismissed the appeal.  For the reasons set out at [46] to [76], the Board found that the applicant’s evidence was unconvincing and unsupported by any evidence.  Even on his own account, that he had caused severe injury to Ansar during the fight, he did not receive any threat of harm from Ansar or his family members, and his allegations of threats were only hearsay. Further, the Board found that as the applicant knew that an arrest warrant was issued against him for assaulting Ansar, he came to Hong Kong to avoid investigation and possible prosecution from the Indian authorities, rather than for his personal safety.  Moreover, the applicant did not raise his torture claim as soon as he arrived in Hong Kong and only did so after he was arrested by the police, which cast doubt on the veracity of his claim.  The Board further found that the applicant had left his home country for 10 years (up to the date of the Board’s hearing) and it was not believed that he would be subjected to any real risk of ill-treatment if refouled.  In any event, internal relation is a viable option.  For the aforesaid reasons, the applicant's non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 27 July 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  The applicant did not advance any grounds for relief in the Form or in his supporting affirmation.

The JR Decision

10.  The applicant did not request an oral hearing and the Judge disposed of the application on paper. After due consideration of the Board’s decision, the Judge refused leave for judicial review for reasons set out in [12] - [23] of the JR Decision:

“Discussion

12. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. 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 are errors of law, procedural unfairness or irrationality in the decision of the Board.

13. When the Applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

14. In the present case, the Board in fact rejected the Applicant’s appeal/petition on the ground that it disbelieved the Applicant and found his evidence unconvincing and devoid of credibility. On the factual findings, there would be no factual basis in support of any of the applicable grounds. The Board further found that internal relocation is a viable option for him to alleviate any genuine fears he may have.

15. As explained above, the assessments of evidence, risk of harm, and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

16. The Applicant stated no grounds of the judicial review in Form 86. He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense. In the absence of any error of law or procedural unfairness being shown by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

17. The Applicant’s conduct in Hong Kong by his delay in lodging the claim for protection was inconsistent with someone in genuine fear for his life and safety.

18. Further, even if one gives his account the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm. It came nowhere near the level of severity required by law to constitute torture or CIDTP.

19. The evidence can hardly establish that the Applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

20. Both the Director and the Board engaged in a joint endeavour with the Applicant and considered all relevant criteria. They gave the Applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

21. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board which are plainly reasonable.

22. 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, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.

23. For the reasons given, there is no prospect of success in the Applicant’s intended application for judicial review.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 4 December 2020 for an extension of time to appeal.  That was dismissed by DHCJ Judge To on 25 February 2022.  Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

13.  As for (1), the applicant was late by 2 days between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was minimal.

14.  As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he only received the JR Decision on 3 December 2020.  As the delay was minimal, it does not matter if that explanation was satisfactory.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. 

16.  In the Summons and supporting affirmation filed with this Court, the applicant advanced the following grounds:

(1)  The Judge was wrong in accepting and endorsing the Board’s finding.

(2)  The Judge had failed to consider the applicant’s non-refoulement claim on all applicable grounds and in particular on the ground of risk of violation of Articles 2 (Right to Life) and 22 (Equality before and equal protection under the law) of the Hong Kong Bill of Rights Ordinance (Cap. 383) (“HKBORO”).

17.  In his written submissions, he quoted passages from ST v Director of Immigration ^[5][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on high standards of fairness.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  He urged the court to grant him leave to appeal against the JR Decision.

18.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal against the Board’s decision.  The assessment of risk, and whether the applicant’s case is established on the applicable grounds, is within the jurisdiction of the Board, see: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  

19.  It is clear from the Board’s decision that the applicant’s case was rejected on the issue of lack of credibility.  Even on his own account of events, he was not harmed nor did he receive any threats from his alleged enemies. His claimed fear of harm and ill-treatment upon his return to his home country was not substantiated by any evidence.  The Board had clearly set out the law, the analysis of the evidence, and the reasons in rejecting the applicant’s claim on all applicable grounds at [47] to [76] of its decision. 

20.  These were facts which the Board was entitled to find, and we are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny.  We are of the view that the Judge’s observations are fully justified and he was entitled to refuse leave. 

21.  Lastly, Article 2 or Article 22 of HKBORO are not engaged in light of the Board’s factual findings.

22.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 6 May 2022.