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CAMP 446/2021
[2022] HKCA 238
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 446 OF 2021
(ON AN INTENDED APPEAL FROM HCAL 1658 OF 2018)
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ALI MOHSIN |
Applicant |
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TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent |
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Before: Hon Au and Chow JJA in Court
Date of Written Submissions: 22 October 2021
Date of Judgment: 18 February 2022
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. By a summons dated 2 August 2021 and filed on 8 October 2021 (“the Summons”), the Applicant applied to this Court for an extension of time to appeal against the order made by Deputy High Court Judge K W Lung (“the Judge”) on 15 January 2020 refusing to grant leave to apply for judicial review.
2. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.
BACKGROUND
3. The Applicant is a national of Pakistan. He arrived in Hong Kong illegally and was arrested by police on Lantau Island on 22 August 2009. He lodged a torture claim on 25 August 2009. Details of the Applicant’s claim have been summarised by the Judge at §§3-4 of the CALL-1 Form ([2020] HKCFI 195):
“[3] In support of his claim, he said that if refouled, he would be harmed or killed by the relatives of 4 victims, who were shot dead by the applicant’s cousin in a dispute over a CD disc. Those relatives were affiliated with the Pakistan People’s Party. He and his cousin Ali Razzaq were seen at the scene. In fact, it was his other cousin Ali Abbas, who killed those people.
[4] He claimed that the incident took place in 2008. The victims’ relatives had been looking for them whilst he and his cousin were moving from place to place between Lahore and Jhelum to avoid them. They finally came to Hong Kong. Subsequently, Ali Abbas surrendered himself. The victims’ relatives agreed to clear their names on the list. His cousin returned to Pakistan. He was captured and beaten up the victims’ relatives. Therefore, he would not return to Pakistan.”
4. By a Notice of Decision dated 26 August 2015 and Notice of Further Decision dated 7 December 2016, the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decisions”).
5. The Applicant appealed the Director’s Decisions to the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”). On 30 July 2018, the Board rejected the Applicant’s appeal and confirmed the Director’s Decisions (“the Board’s Decision”). The Board recorded in its Decision that the Applicant elected not to give evidence at the hearing. The Board assessed the Applicant’s evidence by comparing his evidence in the Non-Refoulement Claim Form and the Interview Report signed on 25 August 2009. Having considered the evidence, the Board concluded that the Applicant’s evidence was conflicting and inherently incredible (§38), the feared ill-treatment was unlikely to materialize if he was refouled to Pakistan (§45), and internal relocation alternatives were available to him (§48).
THE JUDGE’S DECISION
6. The Applicant subsequently filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.
7. On 15 January 2020, the Judge refused to grant the Applicant leave to apply for judicial review. At §§13-15 of Form CALL-1, the Judge stated as follows:
“[13] He has raised no valid ground to challenge the Board’s Decision.
[14] The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is nothing to show that the Board had committed any error in reaching its decision.
[15] The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”
THE JUDGE’S EXTENSION DECISION
8. Under Order 53, Rule 3(4) of the RHC, the Applicant may appeal against the Judge’s order of 15 January 2020 to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the Applicant within the 14-day period. On 19 June 2020, the Applicant issued a summons seeking an extension of time to appeal. The Applicant explained his delay on the basis that he did not receive the court’s letter (see [2021] HKCFI 1873 at §5).
9. The Judge noted that the Applicant had not been able to say in what respect the Board had erred in its Decision, and considered that the Applicant was unable to show that he had any reasonable chance of success in his intended appeal.
10. Accordingly, on 28 July 2021, the Judge refused to extend time for the Applicant’s Appeal and dismissed his application.
THIS APPLICATION
11. By the Summons taken out on 8 October 2021, the Applicant applied to this Court for an extension of time to appeal against the Judge’s order of 15 January 2020.
12. In his written submissions dated 22 October 2021, the Applicant stated that his life was still in danger if he returned to Pakistan.
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 the 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 cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.
16. The Applicant’s delay of over 5 months is substantial, and he has not given any good explanation for the delay. More importantly, the Applicant has failed to identify or show any errors in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable grounds of appeal.
17. The Applicant’s intended appeal has no merit, and has no reasonable prospect of success.
DISPOSITION
18. The application for extension of time to appeal is refused, and the Applicant’s summons filed on 8 October 2021 is dismissed.
(Thomas Au)
Justice of Appeal |
(Anderson Chow)
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 being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3]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.
[4]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.
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