Case Detail

ALI MOHAMMED RASHID v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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[2022] HKCFI 514-EN-2022-02-25

RE ALI MOHAMMED RASHID

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HCAL 1492/2018

[2022] HKCFI 514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1492 OF 2018

____________

RE:

ALI MOHAMMED RASHID

Applicant

____________

Before: Deputy High Court Judge To in Chambers

Date of Decision: 25 February 2022

______________

D E C I S I O N

______________

Introduction

1. This is the Applicant’s application for extension of time to appeal the order of Deputy High Court Judge CP Pang (“DHCJ Pang”) dated 18 November 2020 (the “Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”). On 4 December 2020, 16 days after the Order was made, the Applicant applied by summons for leave to appeal the Order out of time.

The Law

2. Under Order 53, rule 3(4) of the Rules of the High Court, 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. The Applicant is two days out of time.

3. In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^{^[1]}, the Court of Appeal held that in considering whether to extend time for appealing 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.

Length of delay and explanations for the delay

4. By 2 December 2020, the time to appeal has expired. The application for leave to appeal is two days out of time. The breach is not significant and may readily be condoned if a reasonably plausible explanation is proffered.

5. In his summons, the Applicant advanced the following reasons for applying for leave to appeal the Order out of time:

“… I received the Order from the Court on 03/12/2020 but it’s dispatched from the Court on 18/11/2020 which was after 14 days of appeal. So it is my kindly request to the Court to please give some time of extension to file some documents and appeal again in Your Honour’s Court. As I will face hardship if I return back to my Country India because my life is in Danger in my Country.”

In his supporting affirmation filed on the same date, he repeated that he received the Order on 3 December 2020. He wrote:

“Respectfully, I write this affirmation to (illegible) the Court that I received an Order from the Court on 03/12/2020 as the letter was dispatched from the Court on 18/11/2020. So It is my kindly request to the Court to please give some time of extension to me.”

6. As may be gathered from the summons and the affirmation, the Applicant’s explanation for the delay in appealing is that when he received the Order, the 14 days’ time to appeal had expired and that his ground for appeal is that his life will be in danger if he is refouled back to India. He also seemed to confirm that the Order was dispatched by the Court on 18 November 2020, the date stated on the Order. On the face, it is an outright admission of late application with no explanation for the delay in lodging an appeal. The sole ground he gave for the appeal is that his life will be in danger, if he is refouled. This is not a valid ground of appeal.

7. On 21 December 2021, this Court gave the Applicant directions by letter requiring him to file a statement within 14 days of the directions stating when he received the Order and explaining for the delay in lodging his appeal or in receiving the Order and to exhibit supporting evidence, such as the envelope containing the Order and showing the date of posting, if the delay is related to late receipt of the Order. He was also advised that his application will be determined on paper after 21 days from the date of the directions, regardless whether the above directions have been complied with.

8. The directions were designed to let the Applicant confirm beyond any doubt that when he received the Order the time to appeal has already expired and to explain the reason for the late receipt of the Order or delay in appealing, which he has hitherto failed to give. For example, the Order may somehow have been delivered to a wrong address or received by the wrong recipient and then re-directed to him, or the address may somehow have become inaccessible; or he may for some reason, such as illness or detention in custody, be prevented from initiating the appeal procedure. The Applicant never responded. There is therefore simply no explanation for the delay in appealing.

Prospect of success of the intended appeal

9. The Applicant’s sole ground of application is that his life will be in danger, if refouled. Whether his life will be in danger is a question of fact for the Director of Immigration (the “Director”) or the Board. In raising this ground of appeal, the Applicant is challenging the finding of fact of the Board. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In a judicial review, the court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2].

10. I have carefully examined the Call-1 Form. I am satisfied that DHCJ Pang had rigorously examined the Decision, the papers and the evidence with anxious scrutiny and 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 issues; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board disbelieved the Applicant. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. That includes a finding that the Applicant had failed to prove his feared harm and risk if refouled back to India. These are finding of facts which are exclusively 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, unreasonableness and irrationality. DHCJ Pang has scrutinized the decision of the Board and satisfied himself that its decision has not been so vitiated. I agree with that conclusion. The Applicant’s sole intended ground of appeal being a challenge of the Board’s finding of fact is wholly unarguable. The intended appeal has no prospect of success at all.

Prejudice to the respondent

11. As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time. But the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. His application is an abuse of legal process and would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. This application does not raise any questions of general public importance. It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

12. The delay is short and may be readily condoned, if the Applicant could proffer a reasonably plausible explanation. However, there is no valid explanation and no arguable ground of appeal. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. Despite having been given a last opportunity to explain the delay in lodging the appeal, the Applicant has failed to do so. The only reasonable inference is that he has no explanation for the delay and no arguable ground of appeal. His application is an abuse of legal process. To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. For all these reasons, the application for extension of time to appeal is refused.

	( Anthony To )
	Deputy High Court Judge

The applicant is not represented

[1] CAMP 64/2020; [2020] HKCA 844

[2] [2018] HKCA 524 at [14(1)]

HCAL 1492/2018

[2020] HKCFI 2830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1492 OF 2018

BETWEEN
	Ali Mohammed Rashid	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

consideration of the documents only; or
consideration of the documents and oral submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1. This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the Applicant’s claim of non-refoulement protection.

2. The Applicant, born in 1984, is a national of India. He arrived in Hong Kong on 15 July 2008 and was permitted to remain until 29 July 2008 as a visitor. He overstayed and remained in Hong Kong unlawfully. On 26 September 2008, he was arrested by the police and referred to the Immigration Department for investigation. He then lodged a non-refoulement claim. He was subsequently released on recognizance.

3. The facts of the case and the basis for the Applicant’s non-refoulement claim are summarized at para [9-22] of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, the Applicant would be harmed or even killed by Ansar and or his family due to the fact that the Applicant injured him during the course of a fight arising from a dispute in a cricket game. During the fight, he threw a kerosene lamp at Ansar causing the left side of his body to catch fire. Ansar’s brothers, associated with a political party, were looking for him to take revenge upon the Applicant and claim for compensation. For fear of his safety, he left India on 14 July 2008 for Hong Kong.

The Director’sdecision

4. By a notice of decision dated 18 May 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. Having taken into account all relevant circumstances, the Director assessed there are no substantial grounds for believing a real risk of harm. He found that state protection is available to the Applicant and internal relocation is a viable option for him, which further lower the level of risk. The decision covered torture risk^{^[1]}, BOR 2 risk^{^[2]}, BOR 3 risk^{^[3]}, and persecution risk^{^[4]}. The Applicant lodged an appeal/ petition to the Board against the Director’s decision.

TheBoard’sdecision

5. The Applicant attended a hearing before the Board on 22 December 2017.

6. By a decision dated 23 July 2018, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.

7. The Board gave detailed reasons for rejecting the Applicant’s claim at paragraphs [46-76] of its decision. In a nutshell, the reasons can be summarized as follows:

(1)  the Applicant’s account as to his reasons for seeking protection in Hong Kong is unconvincing and devoid of any merit and/or credibility whatsoever [46];
(2)  assuming the events of fighting to be true, he came to Hong Kong to avoid investigation and possible prosecution for assaulting Ansar [48];
(3)  he only sought protection after he was arrested [50];
(4)  not only is the Applicant lacking in credibility…he has never suffered any ill treatment [56];
(5)  in any event, internal relocation is a viable option for the Applicant [67].

8. Accordingly, the Board dismissed the Applicant’s appeal on all applicable grounds.

Application forleaveto apply for judicial review

9. The Applicant filed a Form 86 on 27 July 2018 for leave to apply for judicial review of the decision of the Board.

10. No request for oral hearing has been made. The application is therefore considered on the papers.

11. In the Form 86 and supporting affirmation, the Applicant did not set out any proper grounds for the relief sought.

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.

Disposition

24. Accordingly, leave to apply for judicial review is refused.

Dated 18 November 2020

	(Chung Lai Fan, Christine)
	for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notesfor the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 18 November 2020 Ali Mohammed Rashid Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18 November 2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 7233/17/5/239/IN1379 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 299/09 (Formerly RBCZ 1881/08) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

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

[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the 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.

[4] 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.

	consideration of the documents only; or
	consideration of the documents and oral submission by the Applicant in open court.