HUSSAIN ZAKIR v. TORTURE CLAIMS APPEAL BOARD

CAMP 230 /2021

[2022] HKCA 314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 230 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 890 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.  On 15 September 2020, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 15 June 2021, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there is no prospect of success in the intended appeal[2].

3.  On 25 June 2021, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4.  The applicant is a national of Pakistan. He is 42 years old. He entered Hong Kong illegally in early March 2014 and was arrested by police on 27 March 2014. He lodged a non-refoulement claim on 11 June 2014 on the basis that he will be harmed or killed by his wife’s family who are against their marriage if he returns to Pakistan.

5.  By a Notice of Decision dated 22 June 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decision to the Board. He was absent at the hearing scheduled before the Board on 2 November 2017. He later explained that he did not receive the notice of hearing. The Board agreed to reschedule the hearing and he attended the adjourned hearing before the Board on 6 February 2018. The Board found that the applicant’s claims are not credible because of the significant inconsistencies and contradictions in his evidence concerning matters which are central to his claims. Although the Board appreciated that the applicant’s previous use of Xanax might have impacted on his ability to recall details of events, this cannot account for the inaccuracies in the supporting documents such as the death certificates and media report submitted by the applicant. After considering all the applicant’s claims, evidence and his explanation to the Board’s enquiries and doubts on the evidence, the Board held that the applicant’s claims and the related supporting documents have been fabricated. The Board decided that the applicant did not make out his non-refoulement claim on any of the applicable grounds and dismissed the appeal on 7 March 2018.

The judge’s decision

7.  On 21 May 2018, the applicant applied for leave to apply for judicial review against the decision of the Board. He put forward the following grounds for his intended challenge:

(1)  lack of reasonable basis for rejecting his claim on credibility;

(2)  failure to consider the extended form of state acquiescence;

(3)  failure to fully consider the Country of Origin information (“COI”) reports in assessing the risk to the applicant;

(4)  irregularity in that the decision-maker was a different person from the immigration officer;

(5)  procedural impropriety/unfairness in failing to investigate into the COI of Pakistan;

(6)  irrationality in failing to place weight on relevant information and/or selectively placing weight on irrelevant information;

(7)  irrationality in failing to consider a persistent system of human rights violations;

(8)  irrationality in failing to consider if state protection exists in Pakistan;

(9)  irrationality in placing weight on irrelevant matters or inaccurate or incorrect facts;

(10)  procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(11)  procedural impropriety in applying the incorrect standard of proof; and

(12)  no proper basis for consideration of internal relocation.

8.  DHCJ Bruno Chan considered the application on paper. The judge held that the applicant’s grounds are just broad and vague assertions without particulars, specifics or elaboration as to how they applied to his case or how the Director or the Board had erred in their decisions. The judge found there is no error of law, procedural unfairness or failure to apply high standards of fairness in the decisions of the Director and the Board. Thus, the judge concluded that the intended judicial review has no prospect of success and dismissed his leave application on 15 September 2020.

Grounds of appeal

9.  The applicant did not put forward any grounds of appeal in his summons filed on 25 June 2021. He mentioned in his supporting affirmation that the grounds will be provided on a later date but he has not lodged his written submissions by the prescribed deadline given by the Registrar of Civil Appeal.

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 judge’s order was made on 15 September 2020. The applicant took out a summons in the court below on 1 March 2021. He was late for more than five months. The delay is substantial.

12.  The applicant explained that he did not receive the letter from the court despite his change of address in the record of the Immigration Department. He claimed that he did not know how to change his address in the record of the High Court. 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). Therefore, the applicant’s delay is not justifiable.

13.  In these circumstances, 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).

14.  In assessing the merit of an 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.

15.  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. If no viable ground is put forward to reverse the decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  In the present case, the applicant did not put forward any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant leave for him to bring judicial review. He failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to extend time to appeal against the judge’s decision of 15 September 2020 and dismiss the summons filed on 25 June 2021.