Case Detail

CAMP 56/2022

[2022] HKCA 1229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 56 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1471 OF 2018)

________________________

BETWEEN
	SHAH MOHAMMED KAMALUDDIN	Applicant

	and
	TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent

	and

	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before:

Hon G Lam and Chow JJA in Court

Date of Written Submissions:	9 August 2022
Date of Judgment:	26 August 2022

________________________

JUDGMENT

________________________

Hon Chow JA (giving the Judgment of the Court):

1. On 21 July 2022, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s application for an extension of time to appeal against the order of Deputy High Court Judge K W Lung dated 8 December 2021 refusing to grant him leave to apply for judicial review.

2. The Applicant now applies by Notice of Motion dated 26 July 2022 for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the Applicant contends that:

(1)     the Judges failed to apply the “principle of irrationality” to the decision of the Director of Immigration (“the Director”);
(2)     the Judges failed to apply the principle of procedural fairness to the Director whereby he was required to give reasons justifying his decision;
(3)     there is some error of law in the decision of the decision-maker who just relied on COI (country of origin information) and previous facts which were in favour of rejecting his claim;
(4)     the “Judge” did not apply the law properly and there was procedural unfairness; and
(5)     the decision-maker failed to consider all aspects that were relevant to his case.

The Applicant also says that his life will be in danger in his home country.

3. In the written submissions of the Applicant dated 9 August 2022, he sets out some general principles of law relating to non-refoulement claims, but fails to explain how they are relevant or applicable to his case.

4. Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter 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.

5. The Applicant’s complaints raised in the Notice of Motion are vague and general, and cannot constitute any valid or viable grounds of appeal against the CA Judgment. No question of great general or public importance involved in the proposed appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the proposed appeal. We are satisfied that the intended appeal has no merits and no reasonable prospect of success. There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

6. Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.

(Godfrey Lam)	(Anderson Chow)
Justice of Appeal	Justice of Appeal

The Applicant, acting in person

CAMP 56/2022

[2022] HKCA 1006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 56 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1471 OF 2018)

____________________

BETWEEN
	SHAH MOHAMMED KAMALUDDIN	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

____________________

Before:

Hon G Lam and Chow JJA in Court

Date of Written Submissions:	1 March 2022
Date of Judgment:	21 July 2022

____________________

JUDGMENT

____________________

Hon Chow JA (giving the Judgment of the Court):

1. On 16 February 2022, the Applicant took out a summons with a supporting affirmation seeking an extension of time to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 8 December 2021 (“the Order”) refusing to grant him leave to apply for judicial review.

2. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 13 July 2018, which dismissed the Applicant’s appeal against the further decision of the Director of Immigration (“the Director”) dated 24 May 2017.

3. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4. The Applicant is a national of India. He sought to enter Hong Kong on 6 March 2015 but was refused permission to land. While pending removal, he lodged a non-refoulement claim, alleging that if refouled, he would be harmed or killed by a local leader of Trinamool Congress Party and/or his people. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2021] HKCFI 3655).

5. By a Notice of Decision dated 20 May 2015, the Director refused the Applicant’s non-refoulement claim based on the risk of torture[1], BOR 3 risk[2], and persecution risk[3]. The Applicant appealed against the Director’s decision to the Board. On 28 February 2017, the Board dismissed the Applicant’s appeal and affirmed the Director’s decision. The Board found that the Applicant’s problem in India was private in nature and there was no evidence of state involvement. In any event, internal relocation was available to the Applicant (see Board’s decision at §§47-54).

6. On 4 May 2017, the Director on his own initiative invited the Applicant to submit any additional facts which might be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including BOR 2 risk[4]. In the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 24 May 2017 rejected his BOR 2 claim.

7. The Applicant appealed against the Director’s further decision to the Board. On 13 July 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s further decision (“the Board’s BOR 2 Decision”). The Board found that there was no evidence to show that the Applicant would be at risk of BOR 2 harm if refouled, and that even if there was such a risk, it would be reasonable and safe for the Applicant to relocate within India (see Board’s BOR 2 Decision at §§12-13).

JUDGE’S DECISION

8. On 26 July 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s BOR 2 Decision.

9. On 8 December 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“15. He has submitted no valid ground to assist his application. The Board has considered the facts in the Board’s Decision, which forms the factual basis of his claim. Having considered the facts, the Board concluded that there was no merit in his appeal against the Director’s BOR 2 Decision.
16. The Court does not find any error of law or procedural unfairness in the Board’s BOR 2 Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

10. On 15 February 2022, the Judge refused the Applicant’s application by a summons dated 10 January 2022 for an extension of time to appeal against the Order.

THIS APPLICATION

11. By a summons taken out on 16 February 2022, the Applicant renewed his application for an extension of time to appeal against the Order to the Court of Appeal. In his supporting affirmation filed on the same date, the Applicant wrote that he did not want to return to his country because his life was still in danger.

12. In his 4-page written submissions dated 1 March 2022, the Applicant made generic submissions on some general principles of law relating to non-refoulement claims. He claimed that the Board did not act in a procedurally fair manner in dealing with his application and failed to properly assess his credibility.

DISCUSSION

13. In deciding whether to extend time to appeal, the Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

14. The prospect of success of an intended appeal is important. The court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike[2019] HKCA 702, at §19.

15. The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration[2018] HKCA 524, at §14.

16. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision dated 8 December 2021, and has failed to raise any viable ground of appeal against the Judge’s decision in his summons or affirmation or written submissions.

17. There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

18. The application for extension of time to appeal is refused, and the Applicant’s summons of 16 February 2022 is dismissed.

(Godfrey Lam)	(Anderson Chow)
Justice of Appeal	Justice of Appeal

The Applicant, acting in person

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

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

[3] 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.

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

SHAH MOHAMMED KAMALUDDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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