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MOHOMED RAHOOF MOHOMED SAJAHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2023] HKCA 1079-EN-2023-09-20

MOHOMED RAHOOF MOHOMED SAJAHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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CAMP 306/2022, [2023] HKCA 1079

On appeal from [2022] HKCFI 1202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 306 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2216 OF 2018)

________________________

BETWEEN
	Mohomed Rahoof Mohomed Sajahan	Applicant
	and
	Torture Claims Appeal Board / Non refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and Barma JA in Court

Date of Written Submissions:	20 March 2023
Date of Judgment:	20 September 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 24 February 2023 ([2023] HKCA 215). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 4 May 2022 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim.

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 20 March 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 Sri Lanka. He entered Hong Kong illegally on 27 July 2006 and was arrested by the police on 31 January 2007. He had previously made a torture claim which was rejected by the Immigration Department. The applicant’s subsequent petition against the Director of Immigration was rejected on 22 June 2012. The applicant lodged a non-refoulement claim on 8 April 2013 on the basis that he would be harmed or killed due to ethnic and religious conflicts, and risk of torture by triad members, if he is returned to Sri Lanka.

4. He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 6 July 2022[1].

5. On 19 August 2022, the applicant filed a renewed application for extension of time to appeal. The application was dismissed by the Court of Appeal on 24 February 2023 as he failed to show any prospect of success in his intended appeal.

Grounds of appeal

6. The applicant stated the following grounds in the Notice of Motion filed on 8 March 2023:

(1) The applicant gave the supporting documents regarding his problem and the risk but all the documents were disregarded by the Court of Appeal which did not mention his supporting documents but only his delay in filing the summons;
(2) His father passed away and later his mother also passed away. He has suffered mentally.

7. His written submissions may be summarised as follows:

(1)  He still has problem in his home country. If he goes back, his life will be in danger.
(2)  The Court of Appeal disregarded the applicant’s supporting documents including the police report and his medical certificate without an oral hearing. He is not satisfied with the decision because he needs to explain the present situation to the judges regarding his problem and the risk to life.
(3)  He does not have any property or any house to live in Sri Lanka. His parents passed away in the hospital without proper treatment and medicine. There is lack of proper treatment and medicine shortage in every hospital in Sri Lanka. This problem can happen to him too if he goes back. He is now alone in Hong Kong and is not feeling well mentally.
(4)  All the above mentioned situations are true and the applicant has never lied to the court or any other department.

Analysis and disposition

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 attached the certified translation of the death certificates of his parents to his written submissions. This new evidence was adduced without leave and he did not take out any application for leave to adduce such evidence. Even if he had applied for leave, the court would not grant leave to adduce such further evidence as the conditions established in Ladd v Marshall [1954] 1 WLR are not satisfied. In particular, the applicant failed to show that such evidence could not have been obtained previously for the consideration of the Court of First Instance with reasonable diligence[2], nor can he show that such evidence would or might, if believed, have an important influence on the decision of the court. Therefore, the new evidence will not be considered in this application.

10. The applicant contended that the court has disregarded his supporting documents. This contention is without basis. The court has considered the warrant of arrest attached to his previous written submissions and dealt with this in paragraph 15 of the judgment dated 24 February 2023. Besides, the Court of Appeal is entitled to determine his application for extension of time to appeal without a hearing on the basis of written submissions only.

11. All in all, the applicant has not demonstrated that the Court of Appeal was wrong in dismissing his application and he has 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).

12. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 8 March 2023.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant, acting in person

[1] [2022] HKCFI 1916

[2] The death of the applicant’s father was registered on 26 August 2017 and the death of his mother was registered on 25 February 2022. The translation of both was certified on 28 April 2022, prior to his application to DHCJ Lung for extension of time to appeal against the judge’s decision of 4 May 2022.

CAMP 306/2022

[2023] HKCA 215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 306 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2216 OF 2018)

________________________

BETWEEN
	Mohomed Rahoof Mohomed Sajahan	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 Barma JA in Court

Date of Written Submissions:	1 September 2022
Date of Judgment:	24 February 2023

________________________

J U D G M E N T

________________________

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

1. On 4 May 2022, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2. On 6 July 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merits in the intended appeal[2].

3. On 19 August 2022, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal.

4. The applicant is a national of Sri Lanka. He is 42 years old. He entered Hong Kong illegally on 27 July 2006 and was subsequently arrested by the police on 31 January 2007. He had previously made a torture claim but was rejected by the Immigration Department. The applicant’s subsequent petition against the Director of Immigration was rejected on 22 June 2012. By way of written representation, the applicant lodged a non-refoulement claim on 8 April 2013 on the basis that he would be harmed or killed due to ethnic and religious conflicts, and risk of torture by triad members, if he is returned to Sri Lanka.

5. By a Notice of Decision dated 7 April 2017, the Director rejected the applicant’s claims on all then applicable grounds including torture risk[3], BOR 3 risk[4], BOR 2 risk [5] and persecution risk[6].

6. The applicant appealed against the Director’s decision and appeared before the Board for an oral hearing on 9 May 2018. The Board asked various questions to assess the veracity of the applicant’s claims. It concluded that the evidence provided was vague and speculative. In particular, the applicant’s claim that he would be harmed or killed by individuals, such as Priyantha and Sudu, is not satisfactorily proved as the Board did not accept that these individuals, or anyone else, have motivation to seriously harm the applicant. As for the risk of harm from triad members, the Board was of the view that this threat no longer exists, which is confirmed by the applicant’s own evidence. In any event, the Country of Origin Information provided to the Board did not support the applicant’s claim that he would face serious risk of harm if he is returned to Sri Lanka. Therefore, the Board rejected the applicant’s claim on 16 July 2018.

The judge’s decision

7. On 12 October 2018, the applicant applied for leave to apply for judicial review against the decision of the Board. In his affirmation in support of his application, the applicant simply repeated the risk of harm he faces if he is returned to Sri Lanka. The applicant also mentioned he would obtain documents from Sri Lanka to be provided to the Court. As the applicant did not request for an oral hearing, the judge dealt with the matter on paper.

8. After reviewing the Board’s decision with rigorous examination and anxious scrutiny, the judge did not find any error of law, procedural unfairness or failure of the Board. The judge was of the view that the documents mentioned by the applicant, which were still unavailable, would not be useful to challenge the decision of the Board. The judge further held that the findings of the Board were not in any respect open to challenge as Wednesbury unreasonable or irrational. Therefore, the judge concluded there is no prospect of success in the intended judicial review and refused the leave application on 4 May 2022.

Grounds of appeal

9. The applicant did not provide any grounds of appeal in his summons or his affirmation in support, and merely repeated that he wishes to explain the problems in Sri Lanka by submitting supporting documents and requested an oral hearing. As for his written submissions, he again repeated the dangers he faces in Sri Lanka and recites other source of information regarding the situation in his home country. The applicant also contended that he was not provided with language and/or legal assistance upon his appeal to the Board and in these legal proceedings. The applicant was, however, able to provide a copy of a warrant of arrest from Sri Lanka dated 4 July 2005 annexed to his written submissions.

Analysis and disposition

10. 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.

11. 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 4 May 2022. The applicant took out a summons for extension of time to appeal at the court below on 2 June 2022. He was late by two weeks. However, the applicant did not provide any explanation for his delay and simply stated his request for an oral hearing.

12. As the applicant’s delay is not excusable, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

13. In assessing the merits 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.

14. The applicant’s submissions regarding the situation in Sri Lanka are just bare assertions. As for the complaint of lack of legal and language assistance, the Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings (Re Paswan Shibu Lal[2018] HKCA 249 at §21). Furthermore, interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by the Duty Lawyer service. The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire (Re Gurung Sagar[2019] HKCA 658).

15. Lastly, the specific issue of the warrant of arrest produced by the applicant regarding his offence of damaging a Buddhist shrine was expressly dealt with by the Board’s decision at §94. The Board in fact gave the applicant the benefit of doubt and accepted that the applicant is a suspect. However, the Board held there is no evidence produced that the applicant would not be able to defend himself, or that a real risk of serious harm would occur through such process. We further note that the warrant of arrest was made some 17 years ago in 2005, and we agree with the Board’s view that the passage of years would undermine the applicant’s claim that he would face a real risk of harm in the foreseeable future if he returns to Sri Lanka.

16. Therefore, the applicant failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

17. For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 4 May 2022 and dismiss the summons filed on 19 August 2022.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant, acting in person

[1] [2022] HKCFI 1202

[2] [2022] HKCFI 1916

[3] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[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 being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[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.