MD AKBAR v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 60/2020

[2020] HKCA 874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 60 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1767 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 19 September 2019, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1].

2.  The applicant issued a summons on 29 October 2019 seeking leave to advance “a new sole ground of appeal” and for leave to appeal against the judge’s decision out of time, as the 14-day period to file his appeal ended on 3 October 2019.  The applicant was absent from the hearing of the summons scheduled on 20 December 2019.  On 12 June 2020, the judge handed down his decision refusing to grant leave to appeal out of time as the applicant failed to show that he has a reasonable prospect of success in his intended appeal^[2]. 

3.  On 22 June 2020, the applicant took out a renewed application in the Court of Appeal for leave to appeal out of time.

4.  The applicant is a national of India. He is 27 years old.  He arrived in Hong Kong on 21 April 2016 as a visitor and surrendered to the Immigration Department on 6 May 2016.  He raised a non-refoulement claim on 21 June 2016 on the basis that he would be ill-treated by his creditor if he were to be returned to India.  

The Director’s decision

5.  By a Notice of Decision dated 6 January 2017, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk^[3], BOR 3 risk^[4], torture risk^[5] and persecution risk^[6].

The Board’s decision

6.  The applicant appealed against the Director’s decision to the Board.  He was absent from the Board’s hearing scheduled on 10 July 2018.

7.  The Board found that the applicant’s evidence is incredible as it is inconsistent, unsubstantiated, based largely on hearsay and speculation.  The Board further considered that reasonable state protection would be available to the applicant in India and internal relocation is a viable option.  As the applicant failed to establish that he would face any ill-treatment if he is refouled to India, the Board dismissed his appeal on 6 August 2018.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 28 August 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  He put forward the following grounds for judicial review:

(1)     the Director and the Board determined his case unfairly;

(2)     he was not provided with legal representation and language assistance for his appeal to the Board;

(3)     the Director had adopted a formula and biased approach in assessing his claim; and

(4)     the Board’s decision was not read to him in his own language.

The judge’s decision

9.  The applicant appeared at the hearing before the judge on 22 March 2019. 

10.  The judge noted that the Board rejected all of the applicant’s evidence as he has no factual basis in support of his claim, so did not accept his contention that the Board determined his case unfairly.  Ground (2) failed because the applicant does not have an absolute right of legal representation at every stage of the proceedings and he already had legal representation at the screening stage^[7]. The lack of language assistance is not a valid ground for judicial review, as the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time and interpretation services were available at hearings at every stage^[8]. It was just the applicant’s opinion that the Director had adopted a “formula and biased approach” in assessing his claim, there was no evidence in support of ground (3).  Ground (4) failed because the applicant’s friend had explained the Board’s decision to him.  Having rejected all the grounds that the applicant proposed to advance, the judge refused to grant leave to apply for judicial review.

Grounds of the intended appeal

11.  In the applicant’s written submissions, he stressed that high standards of fairness are required in the determination of a torture claim and submitted that the adjudicator had acted in a procedurally unfair manner without properly assessing his credibility. 

Analysis

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 19 September 2019.  The applicant took out a summons on 29 October 2019.  He was late by nearly a month.  The delay is substantial.

14.  In his affirmation filed in the present proceedings on 22 June 2020, the applicant explained that he had not received the decision on time.  However, in his affirmation filed in the proceedings below on 29 October 2019, his explanation for the delay was that he was not aware of the 14-day time limit. 

15.  The applicant does not have a cogent explanation for the delay.  In these circumstances, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

16.  In assessing the merit of the intended appeal, the court 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.

17.  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.  Assessment of evidence and Country of Origin Information materials and 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 or procedural unfairness or irrationality in the decision of the Board.

18.  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.

19.  The applicant’s ground concerning the Board’s failure to properly assess his credibility is just a bare assertion without elaboration and evidence in support.  He failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in the decision of 19 September 2019.

20.  For the above reasons, the applicant does not have any prospect of success in the intended appeal. We therefore dismiss his summons filed on 22 June 2020 for leave to appeal against the judge’s decision out of time.

[1] [2019] HKCFI 2220.  The applicant named both the Board and the Director as proposed respondents in Form 86 and his challenge concerns both the decisions of the Director and the Board.  Although the judge treated his application as an application for leave to seek judicial review against the Board’s decision in §11 of the decision, he also rejected the applicant’s challenge against the Director’s decision in §§12(2) and 17 of the decision.

[2] [2020] HKCFI 795

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[7] Re Ahmed Syed Rafiq [2018] HKCA 178 at §22

[8] Re Sharma Poonam [2019] HKCA 804 at §16