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

CAMP 363/2023, [2024] HKCA 536

On Appeal From [2022] HKCFI 2687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 363 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2934 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge To (“Judge”) dated 1 September 2022[1] refusing to grant leave for the applicant to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 10 December 2018.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 30 October 2017 rejecting his non-refoulement claim.

2.  On 26 April 2023, the Judge refused to extend time for the applicant to appeal against his decision of 1 September 2022.

Background

3.  The applicant is a national of India born in 1971.  He previously travelled to Hong Kong around ten times from his home country for business.  The applicant last arrived in Hong Kong on the strength of his Indian passport as a visitor and was permitted to stay until 15 October 2015.  He overstayed and surrendered to the Immigration Department on 16 October 2015.  He raised his non-refoulement claim on 8 March 2016 on the basis that he would be harmed or killed by three loansharks (Altamaz Ali, Zahir Ahmed and Shushti Das) due to his inability to repay the respective loans owed to them, if he was refouled to India.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]  By a notice of decision dated 30 October 2017, the Director rejected the claim.

5.  The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 3 October 2018, at which the applicant gave evidence and answered questions from the Board.  In its decision dated 10 December 2018, the Board dismissed the appeal and affirmed the decision of the Director.  The Board’s reasoning was summarised by the Judge at [14] to [20] of the Form CALL-1:

“ 14.  The Board found the Applicant’s behaviour inconsistent with his claimed fear.  He had made about ten trips to Hong Kong between 1 October 2013 when his problems with the Creditors started and 1 October 2015 when he last arrived in Hong Kong.  He never sought non-refoulement protection which reflected that did not genuinely believe he was in danger.  When he allegedly came to Hong Kong for protection, he did not make a claim immediately, but waited until his visitor permit had expired.  The Board rejected his explanation that he was not aware of the availability of non-refoulement protection in Hong Kong because it is not credible that he would not have made enquiries during any of his previous ten trips to Hong Kong or at once on his last arrival.

15.  The Board found the Applicant’s story about the threats from the Creditors was never consistent.  While alleging in his NCF that he was in fear of harm from all his three Creditors, he did not mention the threats from Altamaz Ali in his Written Signification or the threats from Altamaz Ali or Zahir Ahmed in his Notice of Appeal/Petition.

16.  The Board also considered it inherently improbable that the Creditors would have extended loans for such significant amounts without any written agreement, collateral or agreed interest rate.

17.  The Board therefore found that the Applicant had failed to establish the factual basis to support his claim of fear and risk under any of the applicable ground under the USM.  That was sufficient for the Board to dismiss his appeal.

18.  However, the Board went further.  Even assuming that the case as asserted by the Applicant were true, the Board found he had failed to show, if returned to India, that the ill-treatment he would face attains a minimum level of severity and that he would face a genuine and substantial risk of being subjected to such ill-treatment; that the ill-treatment meets the requirements of torture as defined in section 37U(1) of the Immigration Ordinance; that his Creditors were state actors; and that the ill-treatment was inflicted by public officials or persons acting in an official capacity.  It also found that if he is ill-treated on his return to India, it will not be for any reasons protected by the Convention relating to the status of Refugees and its 1967 Protocol.

19.  On the basis of credible Country of Origin Information, the Board found that it was the Applicant who chose not to take steps to remedy the situation and not that state protection would not be available to him.  It rejected the Applicant’s claim that the Creditors were so powerful that they could locate him anywhere in India.  It found that, as an able-bodied adult with 30 years of work experience, he could mitigate the threats from his Creditors by relocating to Mumbai or Delhi.

20.  Applying the law applicable to non-refoulement protection to the facts found, the Board found the Applicant was not entitled to protection under any of the four applicable grounds under the USM.  It therefore dismissed his appeal against the decision of the Director in the Notice.”

The Judge’s decisions in the court below

6.  On 20 December 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s Decision, without specifying any grounds in that form.  In the supporting affirmation, the applicant stated that he would like to provide a more complete picture of the case or situation but he merely annexed the Board’s decision of 10 December 2018 together with its covering letter.

7.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 1 September 2022, the Judge issued his decision to refuse to grant leave to apply for judicial review.  The reasons were set out in [22] to [24] of the Form CALL-1 as follows:

“ 22. The Applicant did not put forward any grounds of application in his Form 86. He had been invited by the Court via its letter dated 14 October 2020 to advise the Court of his first language, contact number and to file submissions. He did not respond. The letter was sent by post on 14 October 2020 to his address stated in his Form 86. It has not been returned through the post. He had never informed the court of any change of address. There is nothing to suggest that he had not received the letter or had moved. He is deemed to have waived his right to make further submissions.

23. The essence of the Applicant’s complaint is that he disagreed with the Board’s finding of fact that he will not face any real harm or risk of harm on his return to his home country. In effect, he is seeking to challenge the Board’s finding of fact which is not permissible. In the absence of proper grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

24.    Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  Primarily, the Board found the Applicant incredible and rejected his case.  He had failed to prove the factual basis in support of his claim to non-refoulement protection.  It also made the further finding about the ill-treatment he would suffer on his return to India on the basis of the case as asserted by him.  Even on that basis, the Board could only reach the same conclusion.  It was on that basis that the Board found the Applicant had failed to prove the factual basis in support of his claim for non-refoulement protection under any of the four applicable grounds under the USM.  Basically, the Applicant failed to discharge his burden of proving his fears and risks. This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicants’ claim is not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.”

8.  Long after the expiry of the 14-day period prescribed by rules of court for lodging an appeal, the applicant filed a summons in the Court of First Instance on 13 March 2023 together with a supporting affirmation to apply for extension of time for appeal, stating that he did not receive the Judge’s decision and only discovered this when informed by an immigration officer.  In his affirmation, the applicant stated that he did not agree with the Judge’s decision and annexed a copy of the Form CALL-1.  The Court asked the applicant to file a statement to explain the date and circumstances under which the order was brought to his notice and his grounds of the intended appeal.  By letter dated 3 April 2023, the applicant stated that he did not appeal within time because he was very sick and did not see the court’s letter, as his friend did not want to show him the letter containing bad news.  He also stated that he only discovered the letter when he was discharged from the hospital, but the time to appeal had lapsed.  He further annexed some documents issued by the Hospital Authority showing that he paid hospital bills in early 2019 and his hospital bills incurred in 2016.  On 26 April 2023, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant’s intended appeal had no prospect of success.

The renewed application before this Court

9.  By summons filed on 6 December 2023, the applicant made an application stating that the court did not grant leave, that he was not happy, and had some objection, and that he had no chance to appeal as he did not receive the judgment.  In accordance with established practice, we shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 1 September 2022 refusing leave for judicial review. 

10.  In the applicant’s supporting affirmation, he stated that he was very sorry that he failed to appeal as he did not receive the judgment and annexed a copy of the Judge’s decision of 26 April 2023.

11.  The applicant lodged written submissions on 19 December 2023.  It consists merely of the basis of his claim and the procedural history of his case.

12.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.  The applicant was late for almost 6 months when he filed his initial summons on 13 March 2023.  In his summons and supporting affirmation, the applicant stated two different circumstances for receiving the judgment late and showed some documents issued by the Hospital Authority that pre-dated the issuance of the Form CALL-1 by many years.  As the applicant’s explanations for the delay appear irrelevant and invalid, the court will not extend time unless there are real prospects of success in the intended appeal.

14.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

15.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  The Board rejected the applicant’s non-refoulement claim because it did not accept the applicant’s evidence to be credible.  The Board further considered that the applicant’s alleged risk of harm was localized, and that reasonable state protection was available and internal relocation was a viable option.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

16.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish or even identify any such public law grounds.

17.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review. 

18.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused.  The applicant’s summons dated 6 December 2023 is accordingly dismissed.