ZAKI v. TORTURE CLAIMS APPEAL BOARD

CAMP 20/2021

[2021] HKCA 1294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 20 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1519 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 19 August 2020, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 14 September 2020, the applicant filed a summons for extension of time to appeal against that decision as the 14-day period to file his appeal was thought to have ended on 2 September 2020. Pursuant to Order 3 rule 3 of the Rules of the High Court, the period of the Court’s summer vacation shall be excluded in reckoning any period prescribed by these rules or by any order or direction for serving, filing or amending any pleading.  Hence, the period of the summer vacation in August 2020 shall be excluded in reckoning the 14-day period for the applicant to file his notice of appeal[2]. The applicant’s summons was dismissed by DHCJ Bruno Chan on 7 January 2021[3].

3.  On 14 January 2021, the applicant filed with the Court of Appeal the present summons stating that the court has refused his application for extension of time to appeal but he has not clearly indicated the relief he intends to seek.  Under these circumstances, this summons should be treated as a renewed application for extension of time to appeal against the judge's decision of 19 August 2020: See Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8.

4.  The applicant is a national of Pakistan.  He is 37 years old.  He entered Hong Kong illegally on 27 October 2009 and was arrested by the police on the same day.  He lodged his torture claim on 29 October 2009 on the basis that if he returns to Pakistan he will be harmed or killed by the Muslim family of his cousin’s girlfriend over some personal dispute and/or by some other Muslims because he is a Christian.  His torture claim was later treated as a non-refoulement claim under the unified screening mechanism.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 28 May 2015, the Director of Immigration (“the Director”) rejected the applicant’s claim on torture risk[4], BOR 3 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 19 August 2016.  Although the Board accepted the applicant’s account of events, it assessed that the applicant failed to establish a well-founded fear that he will be subjected to persecution, severe ill-treatment or torture if he is refouled to Pakistan.  The Board considered there is no suggestion that the Pakistani government has any adverse interest in him and the risk of harm, if any, could be effectively eliminated by internal relocation without undue hardship to the applicant.  Therefore, the appeal was dismissed by the Board on 3 March 2017.

7.  By a Notice of Further Decision dated 24 April 2017, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk[7] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non‑refoulement claim. 

8.  The applicant appealed against the Director’s Notice of Further Decision to the Board.  The Board decided that it was unnecessary to hold an oral hearing and considered the appeal on paper as there were no new materials or facts in relation to the applicant’s claim under BOR 2 risk.  The Board found there is no evidence to show that the applicant will be at risk of harm from capital punishment inflicted by the government of Pakistan or that he will face harm from the Pakistani government that would place his life at risk.  Therefore, the appeal against the Director’s further decision was dismissed by the Board on 13 July 2018 (“the Board’s second decision”).

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 1 August 2018 for leave to apply for judicial review against the Board’s second decision.  He put forward the following grounds for his intended challenge:

(1)  the Board dismissed his appeal on unfounded ground;

(2)  the Board’s decision betrayed a biased and formulaic approach that was unlikely to fairly assess the danger to his life; and

(3)  in light of the new law in Pakistan, relocation is practically impossible as the fight against terrorism touches new high that state protection is in fact non-existent.

The judge’s decision

10.  The applicant attended the hearing before DHCJ Bruno Chan on 21 May 2020.  The judge considered that the applicant’s grounds are just broad and vague assertions without any particulars or specifics or elaboration.  The judge found that the applicant has not provided any additional facts relevant to the assessment of his BOR 2 risk and failed to show any basis to challenge the Board’s second decision.  Thus, the leave application was dismissed on 19 August 2020.

Grounds of intended appeal

11.  In the present application, the applicant stated the following grounds of appeal in his affirmation[8]:

(1)  The applicant does not agree with the decision of 7 January 2021 because it made him unhappy or it is irrational;

(2)  There are many unacceptable and unexplainable grounds which are shown in the decision to refuse his summons for extension of time to appeal;

(3)  He is a genuine non-refoulement claimant who will face all the dangerous problems and harassment upon his return to his home country.  He is unable to find any place in his country to stay safely so he fled abroad to save his life;

(4)  If he did not run away, he would certainly have been killed by his enemies.  His problems are getting more and more life threatening day by day.  He had no other choice but to escape to Hong Kong.

12.  His further contentions stated in his written submissions may be summarized as follows:

(1)  The judge of the Court of First Instance may not have properly analyzed the applicant’s claims in his summons;

(2)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director and the Board;

(3)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker but the judge reviewed the matter lightly;

(4)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director and the adjudicator were required to give reasons justifying their decisions;

(5)  The applicant’s problems are very severe in his home country and he has submitted all the proofs but the judge has not applied greater care and disappointed the applicant;

(6)  The judgment of the applicant’s summons was wrong;

(7)  The adjudicator has failed to give sufficient chance to the applicant to arrange relevant evidence to support his non-refoulement claims as well as his appeal; and

(8)  The applicant will face hardship if he returns to his home country and the Board has significantly relied on the source of news which is not officially recognized, or is simply hearsay.

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 19 August 2020.  He took out a summons for extension of time at the court below on 14 September 2020 instead of filing a notice of appeal out of a mistaken belief that the time for appealing has expired at that time.  Even if the court is minded to excuse the applicant’s delay under these circumstances, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[9].

15.  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.

16.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated 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.

17.  In the present application, the applicant’s grounds are just bare assertions.  He failed to provide any evidence, particulars or sufficient elaboration to demonstrate that the judge was wrong in refusing his leave application.  The applicant alleged that the adjudicator has failed to give sufficient chance to him to arrange relevant evidence to support his non-refoulement claims as well as his appeal but he has still failed to adduce any evidence to support his claims in his previous leave application made to the Court of First Instance and his present application.  The Board had given a detailed analysis and reasons for dismissing his appeal.  The applicant failed to provide any evidence to refute the findings of the Board.  

18.  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 decision of the judge on 19 August 2020 and dismiss the summons filed on 14 January 2021.

[1] [2020] HKCFI 2015

[2] Re Satinder Pal Singh [2021] HKCA 319 at §17

[3] [2021] HKCFI 3

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

[5] 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.

[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.

[7] 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.

[8] These grounds are substantially similar to the ones he put forward in his previous application for extension of time.

[9] Re Gurung Min Bahadur [2018] HKCA 226 §10