ASIF FAROOQ v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 169/2020

[2021] HKCA 1292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 169 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 5 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 9 June 2020, Campbell‑Moffat J refused to grant leave for the applicant to seek judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 29 July 2020, the applicant filed a summons for leave to appeal out of time against that decision as the time for filing his appeal ended on 23 June 2020.  The applicant’s summons was dismissed by Campbell‑Moffat J on 26 August 2020[2].

3.  On 18 September 2020, the applicant filed with the Court of Appeal a renewed application for leave to appeal out of time.

4.  The applicant is a national of Pakistan.  He is 50 years old.  He entered Hong Kong as a visitor on 4 August 2001 and subsequently overstayed.  On 5 May 2009, he surrendered to the Immigration Department and lodged a torture claim.  He withdrew his torture claim in 2012 stating that he wished to return to Pakistan.  The applicant lodged a non‑refoulement claim on 24 July 2015 on the basis that if he returns to Pakistan he will be harmed or killed by the people of Lashkar-e-Jhangvi as he had reported their illegal activities to the police.

The Director’s decisions

5.  By a Notice of Decision dated 22 August 2016, the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

6.  By a Notice of Further Decision dated 3 August 2017, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk[6] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim. 

The Board’s decision

7.  The applicant appealed against the Director’s decisions to the Board.  He attended the hearing before the Board on 10 October 2017.  The Board considered that the applicant is not a truthful witness because of the vagueness, incoherence and material discrepancies in his evidence.  The Board held that no credence can be given to anything the applicant asserted and concluded that the applicant failed to establish he would face any risk of harm under the applicable grounds.  Therefore, the Board dismissed the appeal on 5 December 2017.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 2 January 2018 for leave to apply for judicial review against the decisions of the Director and the Board.  He put forward the following grounds for his intended challenge in his supporting affirmation:

(1)     failure to consider the concept of state acquiescence and/or the extended form of state acquiescence;

(2)     insufficient enquiry;

(3)     failure to provide adequate reasons for the decision;

(4)     failure to investigate into the country of origin information (“COI”) of Pakistan;

(5)     failure to place weight on relevant information and/or placing weight on irrelevant information, or incorrect or inaccurate facts;

(6)     failure to consider a consistent system of human rights violations;

(7)     failure to consider if state protection exists in Pakistan;

(8)     failure to call for psychological or psychiatric reports;

(9)     applying the incorrect standard of proof;

(10)     lack of reasonable basis for rejecting the applicant’s credibility;

(11)     failure to fully consider the COI reports;

(12)     procedural irregularity as the decision maker was not the interviewing officer;

(13)     improper basis for consideration of internal relocation.

The judge’s decision

9.  The judge considered the leave application on paper as the applicant did not request for an oral hearing.  She held that the applicant’s grounds are without merit either for lack of particulars or because the issue does not arise in all the circumstances of his case.  The judge further considered that the interviewing officer was delegated to carry out his function by the Director in a lawful and proper manner and there is no irregularity in that respect.  Therefore, the leave application was dismissed by the judge on 9 June 2020. 

Grounds of intended appeal

10.  In the present application, the applicant did not state any grounds of appeal in his summons or affirmation.

Analysis and disposition

11.  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.

12.  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 9 June 2020.  The applicant took out a summons for leave to appeal out of time at the court below on 29 July 2020.  He was late by more than a month. 

13.  The applicant explained that he did not receive the judgment within the 14-day period for lodging his appeal.  Even if the court is minded to accept his explanation in view of the postal delay during the Covid-19 pandemic, 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[7].

14.  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.

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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  No viable ground has been put forward by the applicant to reverse the judge’s decision in the present application.  He failed to show any prospect of success in his intended appeal.  We decline to exercise our discretion to grant extension of time to appeal against the judge’s decision and dismiss the summons filed on 18 September 2020.

[1] [2020] HKCFI 1146

[2] [2020] HKCFI 2053

[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.

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