Case Detail

CAMP 230/2022, [2023] HKCA 632

On appeal from [2020] HKCFI 1931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 230 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 54 OF 2018)

________________________

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

________________________

Before:

Hon Kwan VP and Chow JA in Court

Date of Written Submission:	17 January 2023
Date of Judgment:	4 May 2023

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 8 December 2022 ([2022] HKCA 1782). The Court of Appeal refused to grant leave to appeal out of time against the decision of Campbell-Moffat J dated 7 August 2020 dismissing the application for leave to seek judicial review concerning the applicant’s non-refoulement claim which was made out of time.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 17 January 2023. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Tanzania who entered Hong Kong on 2 February 2012 as a visitor and subsequently overstayed. He was arrested by the police on 7 August 2012. On 3 March 2014, he raised a non-refoulement claim on the basis that he will be harmed or killed by his creditor if he returns to Tanzania because he fails to repay the loan.

4. He took out a summons in the court below to seek leave to appeal out of time against the decision of the judge. It was refused by the judge on 3 May 2021 [1].

5. On 5 July 2022, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal. The application was dismissed by the Court of Appeal on 8 December 2022 as the applicant failed to show any prospect of success in his intended appeal.

6. The applicant stated the following as his grounds in the Notice of Motion filed on 4 January 2023:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL [sic] Information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefers to ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

7. His written submissions may be summarised as follows:

(1) high standards of fairness are required in the determination of a torture claim on the part of the decision maker;
(2) the Board acted in a procedurally unfair manner without properly assessing his credibility.

8. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

9. The applicant’s grounds and submissions in the present application were not raised in his previous applications before the Court of First Instance or the Court of Appeal. It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

10. In any event, these grounds and submissions are just bare assertions without particulars or evidence in support. He has not pointed out any error in the judgment of the Court of Appeal. He also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

11. For the above reasons, we refuse leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 4 January 2023.

(Susan Kwan)
Vice President

(Anderson Chow)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 1240

CAMP 230/2022

[2022] HKCA 1782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 230 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 54 OF 2018)

________________________

BETWEEN

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

________________________

Before:

Hon Kwan Ag CJHC and Chow JA in Court

Date of Written Submission:	15 July 2022
Date of Judgment:	8 December 2022

________________________

J U D G M E N T

________________________

Hon Kwan Ag CJHC (giving the Judgment of the Court):

1. On 7 August 2020, Campbell-Moffat J dismissed the applicant’s application for leave to seek judicial review concerning his non-refoulement claim which was made out of time[1].

2. On 22 December 2020, the applicant filed a summons for leave to appeal out of time against that decision at the Court of First Instance. The applicant’s summons was dismissed by the judge on 3 May 2021[2].

3. On 5 July 2022, the applicant filed a renewed application for leave to appeal out of time with the Court of Appeal.

4. The applicant is a national of Tanzania. He is 35 years old. He entered Hong Kong on 2 February 2012 as a visitor and subsequently overstayed. He was arrested by the police on 7 August 2012. On 3 March 2014, he raised a non-refoulement claim on the basis that he will be harmed or killed by his creditor if he returns to Tanzania because he fails to repay the loan.

The decisions of the Director and the Board

5. By a Notice of Decision dated 24 June 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5]. On 8 July 2016, the applicant appealed against the Director’s decision to the Torture Claims Appeal Board (“the Board”).

6. By a Notice of Further Decision dated 14 July 2017, the Director rejected the applicant’s claim on BOR 2 risk[6] in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim.

7. The applicant attended the hearing before the Board on 29 August 2017. The Board considered the appeal on all applicable grounds. Giving the benefit of doubt to the applicant, the Board accepted that the creditor may seek to harm the applicant and that he may find it difficult to obtain police assistance in Tanzania. However, the Board considered that he should be able relocate to other places in Tanzania to avoid the risk of harm. The Board held there is no evidence to show that the creditor has the resources to locate the applicant in other places and it would not be unduly harsh for him to relocate to other cities. Therefore, the Board dismissed the appeal on 27 September 2017.

The intended judicial review

8. The applicant filed a Form 86 and an affirmation on 11 January 2018 for leave to apply for judicial review against the decision of the Board, outside the three-month limit. He did not provide any specific grounds for the intended judicial review. He also did not apply for extension of time or provide any explanation for the delay.

The judge’s decision

9. Campbell-Moffat J dealt with the application on paper. The judge found there is no reason before the court as to why extension of time should be given and there is no merit in the applicant’s claim. Therefore, the judge dismissed the leave application on 7 August 2020.

10. The applicant filed another Form 86 with the court below on 12 May 2021. Master Hui directed that the applicant is not allowed to file a repeated application.

Grounds of intended appeal

11. The applicant stated the grounds of appeal in his written submissions which may be summarised as follows:

(1) High standards of fairness are required in the determination of a torture claim on the part of the decision maker.
(2) The Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

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 7 August 2020. The applicant was late by more than 3 months, exclusive of the court’s summer vacation in August 2020, when he took out a summons for leave to appeal out of time at the court below on 22 December 2020.

14. Pursuant to Order 59, rule 14(3) of the Rules of the High Court, where an ex parte application has been refused by the court below, an application for a similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal. The applicant’s application for extension of time to appeal was refused by the court below on 3 May 2021. He was late for about 7 months when he made the present application to the Court of Appeal on 5 July 2022.

15. The applicant explained that he did not receive the order and judgment within 14 days from 7 August 2020. He did not state when he actually received the judgment and order. He also did not provide any explanation for his substantial further delay in making the renewed application with the Court of Appeal. Under these circumstances, the applicant’s delay is inexcusable. Therefore, he must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

16. The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

17. 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. 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.

18. The applicant’s grounds are without basis. In particular, the Board had given him the benefit of the doubt and accepted the main parts of his case. The appeal was not dismissed for lack of credibility.

19. The applicant also 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.

20. As there is no prospect of success in his intended appeal, it would not be appropriate to allow the applicant to bring an appeal out of time. We therefore dismiss the summons filed on 5 July 2022.

(Susan Kwan)	(Anderson Chow)
Acting Chief Judge of the High Court	Justice of Appeal

The Applicant, acting in person

[1] [2020] HKCFI 1931

[2] [2021] HKCFI 1240

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

[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 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.

[6] 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.

RAMADHAN BAKARI RASHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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