AMIN MUHAMMAD alias MUHAMMAD AMIN v. TORTURE CLAIMS APPEAL BOARD

CAMP 90 /2024, [2024] HKCA 1079

On appeal from [2023] HKCFI 463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 90 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1447 OF 2022)

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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):

1.  On 10 March 2023, 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 2 April 2024, the applicant filed a summons at the Court of First Instance to seek extension of time to appeal against that decision.  The summons was dismissed by the judge on 14 May 2024[2].  

3.  On 21 May 2024, 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 entered Hong Kong illegally on 17 November 2020 and was arrested by the police on 26 November 2020.  He raised a non-refoulement claim on 29 November 2020 on the basis that, if refouled, he would be harmed or killed by a leader of the political party Pakistan Muslim League-Nawaz (“PML(N)”)  as he refused to join PML(N).

The decisions of the Director and the Board

5.  By a Notice of Decision dated 20 October 2021, the Director of Immigration (“the Director”)  rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].  

6.  The applicant’s notice of appeal against the Director’s decision reached the Board out of time on 19 July 2022.  The applicant’s former solicitors had informed the applicant of the Board’s decision on 22 October 2021.  The applicant acknowledged that the Board’s decision was interpreted to him and that he fully understood that the notice of appeal has to be filed within 14 days.  The applicant claimed that he was arrested by the police on 25 October 2021 and did not know he could still appeal from the prison.  The Board considered that not knowing the appeal can be filed from prison is not a reasonable excuse for the prolonged period of delay, especially when the applicant had already understood that the appeal has to be filed within 14 days from 20 October 2021 and eventually lodged the late application before he was discharged from prison.  The Board refused the applicant’s application for late filing of the appeal on 24 November 2022 as the applicant failed to show that the delay was beyond his control and there are no special circumstances to warrant the inordinate delay in filing the notice of appeal. 

The intended judicial review

7.  On 8 December 2022, the applicant filed a Form 86 and an affirmation in HCAL 1447/2022 to seek leave to bring judicial review against the Board’s decision.  He did not put forward any grounds for his intended challenge.

The judge’s decision

8.  DHCJ Bruno Chan considered the leave application on paper as the applicant did not request for an oral hearing.  The judge held that the Board did carefully and properly consider the application’s explanation for the delay in filing his notice of appeal and it was entitled to find that the applicant failed to establish that he had exercised all due diligence to file the notice of appeal.  As the applicant failed to identify any error of law or procedural unfairness in the proceedings before the Board, the judge concluded that there is no reasonably arguable basis for the intended challenge.  Therefore, the judge decided that the proposed judicial review has no prospect of success and dismissed the leave application on 10 March 2023.

Grounds of intended appeal

9.  The applicant stated his grounds of appeal in the written submissions which may be summarised as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker; and

(2)  The adjudicator acted in a procedurally unfair manner without properly assessing his credibility.

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 order was made on 10 March 2023 and the applicant was late by more than 11 months when he took out the summons at the court below on 2 April 2024, exclusive of the court’s summer vacation in August.  He explained that he did not receive the decision and was not aware of it until sometime in early 2024[7].

12.  The court’s record shows that the decision was sent to the applicant’s addresses which were provided by the applicant and the Immigration Department to the court on 10 March 2023.  The mails were undelivered and subsequently returned to the court.  It is noted that the said addresses were different from the address stated in the applicant’s summonses for extension of time to appeal.  Apparently, the applicant had moved but did not inform the court of his new address.  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). Under these circumstances, the applicant’s substantial delay is inexcusable. Therefore, he 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.

13.  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.

14.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

15.  In the present case, the Board has duly considered if the applicant’s late filing of the appeal should be allowed pursuant to section 37ZT(3)  of the Immigration Ordinance (Cap 115).  This section provides that the Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person had exercised all due diligence to file the notice within the specified period but failed to do so because of circumstances beyond the person’s control.  As mentioned above, the Board has provided sufficient reasons to support its conclusion that the applicant failed to show that the delay was beyond his control.  The Board’s decision was not based on adverse findings on the applicant’s credibility and the applicant failed to identify any particular errors, procedural unfairness or irrationality in the decision of the Board.  He also failed to show 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.

16.  For the above reasons, there is no prospect of success in the intended appeal.  We refuse to exercise our discretion to grant extension of time to appeal and dismiss the summons filed on 21 May 2024.