Case Detail

CAMP 527/2022, [2023] HKCA 1217

On appeal from [2022] HKCFI 539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 527 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2196 OF 2018)

________________________

BETWEEN
	Alam Imtiaz	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 Chow JA in Court

Date of Written Submission:	22 May 2023
Date of Judgment:	26 October 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 4 May 2023 ([2023] HKCA 630). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 1 March 2022 dismissing the application for extension of time to apply 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 22 May 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 India. He was arrested by the police on 5 November 2007. He lodged a torture claim on 15 November 2007, which was taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism. His claim was made on the basis that, if refouled, he would be harmed or killed by his elder brothers because of a land dispute.

Grounds of appeal

4. The applicant stated his grounds of appeal in the Notice of Motion filed on 8 May 2023 which may be summarised as follows:

(1)  The court reached the decision wrongly in assessing the applicant’s non-refoulement claim. The decision is unreasonable and unfair;
(2)  The rights to life must be protected from extra judicial killings;
(3)  The judge failed to give the applicant sufficient time and chance to arrange the relevant evidence for his non-refoulement claim as well as the appeal;
(4)  The incompetency of the administration in the applicant’s country is still a very serious problem.

5. In his written submissions, he further contended that:

(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

6. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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.

7. The applicant was late for 5 months in filing his application for extension of time to appeal but did not adduce any evidence on the last occasion. In the present application, the applicant also did not put forward any evidence which he claimed he did not have sufficient time and chance to submit previously. He also failed to identify what evidence he intended to adduce in support of his case. Thus, the allegation of lack of sufficient time and chance to arrange for the relevant evidence is without basis.

8. The rest of the applicant’s grounds and submissions in the present application are substantially similar to the ones he raised in the previous application for extension of time to appeal, and have already been rejected by the Court of Appeal. The applicant has not identified any mistakes in the judgment of the Court of Appeal nor has he raised 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).

9. 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 May 2023.

(Susan Kwan)
Vice President

(Anderson Chow)
Justice of Appeal

The Applicant, acting in person

CAMP 527/2022, [2023] HKCA 630

On appeal from [2022] HKCFI 539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 527 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2196 OF 2018)

________________________

BETWEEN
	Alam Imtiaz	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:	22 December 2022
Date of Judgment:	4 May 2023

________________________

J U D G M E N T

________________________

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

1. On 1 March 2022, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to seek leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2. On 22 September 2022, the applicant filed a summons for extension of time to appeal against that decision at the Court of First Instance. The applicant’s summons was dismissed by the judge on 27 October 2022[2].

3. On 8 December 2022, the applicant filed the present summons seeking leave to apply for judicial review. This application should be treated as a renewed application for extension of time to appeal against the judge's decision of 1 March 2022: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8.

4. The applicant is a national of India. He was arrested by the police on 5 November 2007. He lodged a torture claim on 15 November 2007, which was taken as a non-refoulement claim upon the commencement of unified screening mechanism. His claim was made on the basis that, if refouled, he would be harmed or killed by his elder brothers because of a land dispute.

The decisions of the Director and the Board

5. By a Notice of Decision dated 6 August 2014, the Director of Immigration (“the Director”) rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

6. The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 23 April 2015. The Board considered that the acts complained of had not attained the requisite minimum level of severity for non-refoulement protection. The Board further found that the applicant’s problem is a family dispute which did not involvement any public official or state acquiescence. The Board also assessed that state protection and internal relocation alternatives are available to the applicant in India. The Board decided that the applicant failed to substantiate his case under the applicable grounds and dismissed his appeal on 17 February 2016 (“the Board’s 1^st decision”).

7. On 19 December 2016, the Director invited the applicant to submit additional facts which he considers relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk[6] in case he has omitted any relevant facts in relation thereto before. By a Notice of Further Decision dated 4 May 2017, the Director rejected the applicant’s claim on all applicable grounds including on BOR 2 risk in the absence of response from him to the said invitation.

8. The Board considered the applicant’s BOR 2 risk in an appeal hearing on 26 March 2018. The Board found no evidence to show there is a personal and real risk of the applicant being subjected to a BOR 2 risk on his return to India. Thus, the Board dismissed the appeal on 3 May 2018 (“the Board’s 2^nd decision”).

The intended judicial review

9. On 10 October 2018, the applicant filed a Form 86 and an affirmation in HCAL 2196/2018 to seek leave to bring judicial review against the Board’s 2^nd decision out of time. He did not put forward any grounds for his intended challenge.

The judge’s decision

10. DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The judge found that the applicant does not have any valid ground to challenge the Board’s decision. The judge also found there is no error of law or procedural unfairness in the Board’s decision. As there is no realistic prospect of success in the applicant’s intended judicial review, the judge refused to grant extension of time for the applicant to seek leave to bring judicial review and dismissed the application on 1 March 2022.

Grounds of intended appeal

11. The applicant stated in the summons that he does not want to return to his country because his life is still in danger there and he believes that the judge reached the decision wrongly in assessing his non-refoulement claim, and that the decision was unreasonable and unfair.

12. His further contentions in the 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.

Analysis and disposition

13. 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.

14. 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 1 March 2022 and the applicant was late by about 5 months when he took out the summons for extension of time to appeal at the court below on 22 September 2022, exclusive of the court’s summer vacation in August. He explained that he did not receive any letter from the court so he did not know when his application was refused.

15. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran[2018] HKCA 439, at §15). The court sent the decision to the applicant’s address by post on the date of handing down the judgment on 1 March 2022 and the mail was not returned to the court by the post office. Under these circumstances, the applicant’s explanation for the substantial delay is not justifiable.

16. As the delay is inexcusable, the applicant 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.

17. 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.

18. The applicant has not identified any specific errors, unreasonableness or unfairness in the judge’s decision. He failed to show 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. Furthermore, his written submissions are just bare assertions without evidence in support.

19. We are firmly of the view there is no prospect of success in the intended appeal against the judge’s decision of 1 March 2022. We therefore dismiss the summons for extension of time to appeal filed on 8 December 2022.

(Susan Kwan)
Vice President

(Anderson Chow)
Justice of Appeal

The Applicant, acting in person

[1] [2022] HKCFI 539

[2] [2022] HKCFI 3091

[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).

ALAM IMTIAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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