MUHAMMAD ARIF AMIN MUGHAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 117 /2023, [2023] HKCA 1049

On appeal from [2022] HKCFI 2723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 117 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2937 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  On 5 September 2022, Deputy High Court Judge To refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 17 October 2022, the applicant filed a summons for extension of time to appeal against the said decision. The summons was dismissed by the judge on 20 February 2023[2].

3.  On 22 March 2023, the applicant filed the present summons with the Court of Appeal to appeal against the judge’s refusal to extend time on 20 February 2023. In light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of the judge dated 5 September 2022.

4.  The applicant is a national of Pakistan. He was arrested on 22 February 2007 by the police and claimed to have entered Hong Kong illegally. He raised a torture claim under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment on 11 June 2007. This was rejected by the Director of Immigration on 18 June 2013. His appeal against that decision was dismissed by the Board on 10 December 2013. Upon implementation of the Unified Screening Mechanism (“USM”), he lodged the present non-refoulement claim on 20 and 26 June 2013. In gist, he claims that he will be harmed or killed by his creditors, the “Ali Brothers”, if he is refouled to Pakistan.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 10 April 2018, the Director rejected the applicant’s claim on the applicable grounds covering BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. The applicant’s non-refoulement claims under the USM did not consider the torture risk[6] as this was already rejected by the Director in his previous decision on 18 June 2013.

6.  The applicant appealed against the Director’s decision under the USM dated 10 April 2018 to the Board. He attended the hearing before the Board on 1 August 2018, and gave evidence and answered questions. The Board made extensive enquiries regarding the applicant’s claims and upon careful consideration, it found that the applicant was not a witness of truth and had fabricated his claim.

7.  This finding against the applicant was based on several grounds. The applicant insisted in his written evidence and at the first interview that Mansoor, one of the Ali Brothers, had been a member of the Punjab Legislative Assembly and wielded political power. At the hearing, when presented with country information to the contrary, the applicant changed his evidence and said that he was just told that Mansoor was a member of the legislature but this information might not be true. Based on credible country of origin information, the Board found there was no member of the Punjab provincial assembly or in Pakistan’s national assembly by the name of Mansoor Ali. Further, the Board found his evidence that he was previously ill-treated by the Ali Brothers to be vague and ambiguous. Other contradictions in the applicant’s evidence further undermined his credibility, such as his intention to lodge a complaint to the authorities against the uncle of the Ali Brothers, but later changed his testimony to the Board claiming that he had sought help from the same uncle.

8.  The Board further considered that even if the above findings were wrong, the applicant could still safely and reasonably relocate to other parts of Pakistan. As he had working experience as a salesperson, the Board found it would not be unreasonable for him to relocate to cities such as Karachi (a considerable distance from Lahore, where he lived), as well as Kashmir, Islamabad and Khyber Pakhtunkhwa (where he previously worked).

9.  Therefore, the Board dismissed the applicant’s appeal on 24 September 2018 and confirmed the Director’s decision dated 10 April 2018.

The intended judicial review

10.  On 21 December 2018, the applicant filed a Form 86 and an affirmation to seek leave for judicial review. The Form 86 did not identify the respondent or the decision to be challenged. It was therefore amended by the judge to the effect that the respondent and interested party shall be the Board and the Director respectively, and the decision to be challenged shall be the Board’s decision dated 24 September 2018. The applicant did not provide any grounds in support for seeking relief in the Form 86. In his supporting affirmation, he simply stated that he did not wish to return to Pakistan. As the applicant did not request an oral hearing, the judge dealt with the leave application on paper.

The judge’s decision

11.  The judge found that there was no error of law in the Board’s decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board had observed a very high standard of fairness and its findings were not Wednesbury unreasonable or irrational. As there is no realistic prospect of success in the applicant’s intended judicial review, the judge dismissed the leave application on 5 September 2022.

Grounds of intended appeal

12.  The applicant did not provide any grounds of appeal in the present summons and merely requested leave be granted to appeal. As for his supporting affirmation, the applicant complained he did not have access to legal advice and further stated that there is “good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”.

13.  The applicant’s written submissions contained citation of various authorities and legal principles, but without any elaboration of their applicability to his case. There was also a reference to section 37ZT of the Immigration Ordinance (Cap 115) concerning the late filing of notice of appeal before the Board. His contentions may be summarised as follows:

(1)  High standards of fairness are required on the part of decision maker in the determination of torture claim as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing the credibility of the applicant.

Analysis and disposition

14.  In considering whether to extend time to appeal 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.

15.  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 5 September 2022 and the applicant was late by 4 weeks when he took out the summons for extension of time to appeal at the court below on 17 October 2022.

16.  In his summons in the Court below, the applicant stated that he did not receive the judge’s decision in time. Whilst the judge noted there may have been some truth to the applicant’s contention, nevertheless it was the duty of the applicant to inform the court of his change of address. With a view to explore the existence of possible explanation for the delay in lodging a notice of appeal, the judge directed the applicant to file a statement with supporting documentary evidence on specific matters. Having considered the further evidence from the applicant, the judge made these observations at §10 in his decision on 20 February 2023:

“10. … according to the Court’s record, [the applicant] had never informed the Court of his change from the first address to the second address. He only used the second address when he filed his Summons and that address was then used by the Court in correspondence with him. Piecing his answers together, the truth is amply clear. The covered-up address is actually the second address. The Applicant had moved from the first address to the second address sometime after 16 March 2020 without informing the Court. Hence, the Order and the Form CALL-1 were sent to the first address. He had not complied with the Court’s direction to state the circumstances when he was first informed of the outcome of his Leave Application. The Court has no direct evidence how he came to know about the Order. Presumably, he learned about it from an immigration officer on his regular reporting of his recognizance to the Immigration Department. He only had himself to blame for not having received the Order in time to enable him to file his appeal. He does not have any reasonable explanation for the delay of a not insubstantial period of 28 days.”

17.  We agree with the judge it was likely that the applicant had moved without updating the court his new address, and hence he might have not received court documents in time. The Court of Appeal has repeatedly stated that 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).

18.  In the circumstances, we do not accept the applicant’s explanation and find the delay is not justifiable.

19.  Where a delay is inexcusable, 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).

20.  In assessing the merits of the 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.

21.  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.

22.  The applicant’s complaint of the lack of access to legal advice was not raised in his previous application at the court below. His decision to raise this ground for the first time will not be entertained. As the Court of Appeal has expressly stated, an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below (Re Qadir Sher [2018] HKCA 160 at §11). In any event, the Court of Appeal has held that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings (Re Paswan Shibu Lal [2018] HKCA 249 at §21). The applicant’s ground concerning the lack of access to legal advice has no merit.

23.  As for the grounds in his written submissions, some of them are completely irrelevant, such as the late filing of a notice of appeal in an appeal against a decision of the Director to the Board under section 37ZT of the Immigration Ordinance. As for the issue of credibility, the Board had provided sound reasons for rejecting the applicant’s evidence. As the judge rightly observed, findings of facts are exclusively within the province of the Board. The contention that the Board was procedurally unfair in that regard is just a bare assertion.

24.  More importantly, the applicant 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 in his decision.

25.  For all the above reasons, we find there is no prospect of success in the intended appeal, and this court will not grant extension of time for a hopeless appeal. The summons filed on 22 March 2023 is dismissed accordingly.