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CAMP 3/2023, [2023] HKCA 509
On An Intended Appeal From [2020] HKCFI 1275 &
[2021] HKCFI 1851
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 3 OF 2023
(ON AN INTENDED APPEAL FROM HCAL NO 2364 OF 2018)
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BETWEEN
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AFZAAL AHMED |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD |
Putative |
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Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative |
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Interested Party |
________________________
| Before: |
Hon G Lam and Chow JJA in Court |
| Date of Written Submissions: |
18 January 2023 |
| Date of Judgment: |
26 April 2023 |
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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. On 4 January 2023, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 22 June 2020 (“the Order”) refusing to grant the Applicant leave to apply for judicial review.
2. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 11 August 2017, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 5 December 2016 rejecting the Applicant’s non-refoulement claim.
3. 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, Cap 4A.
BACKGROUND
4. The Applicant is a national of Pakistan. He entered Hong Kong illegally in January 2015, and was arrested by the police in March 2015. He was subsequently convicted of the offence of undertaking unauthorized employment, and sentenced to a term of imprisonment of 15 months. After his discharge from prison, he was referred to the Immigration Department for deportation. He then raised a non-refoulement claim on the basis that if he returned to Pakistan, he would be harmed or killed by a local drug dealer for refusing to participate in his illegal activities. Details of the Applicant’s claim have been summarised by the Judge at §1 of the CALL-1 Form ([2020] HKCFI 1275).
5. By a Notice of Decision dated 5 December 2016, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).
6. The Applicant appealed the Director’s Decision to the Board. On 11 August 2017, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).
7. On 26 October 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.
8. However, he later wrote a letter to the Court dated 30 January 2020 requesting to withdraw his application:
“I Afzaal Ahmed (RBCL/30050/16(CZ)) would like to withdraw the judicial review as my issue in home country Pakistan is solved and I will be safe to return to home country without any torture and case against me.”
THE JUDGE’S DECISION
9. On 22 June 2020, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:
“[3] On 26 October 2018 the Applicant filed a notice of application for leave to apply for judicial review of the Board’s decision, with which he was seriously late by more than 11 months, but before his application could be dealt with by the court, he wrote a letter to the court requesting to withdraw his application and stated as follows…
[4] As such and given that the basis of his non-refoulement claim no longer exists and that it would be safe for him to return to his home country, it would be appropriate that his application be dismissed instead of withdrawn, and accordingly I dismiss his leave application.”
10. On 6 July 2021, the Judge refused the Applicant’s application by summons dated 13 April 2021 for an extension of time to appeal against the Order ([2021] HKCFI 1851). The Judge found that the Applicant’s delay of more than 9 months to lodge his intended appeal must be considered as very substantial, and was not satisfied that the Applicant had provided any good reason for his serious delay. Further, at §§8-9 of the decision, the Judge stated as follows:
“[8] More importantly, nor did he put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or affirmation, and at the hearing of his summons he just stated that he still have problem in his home country where his life would still be in danger. As such and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal.
[9] In fact, as noted above, the decision to dismiss the applicant’s claim was made at his request and upon his own evidence that his alleged problem in his home country which formed the basis of his non-refoulement claim had been resolved, which was also supported by another document produced by the applicant at the time of his request, namely an affidavit made by a brother of his which supported his proposal to return to his family in Pakistan. If indeed his alleged problem in his home country has recurred or has not been resolved after all, he may have other reliefs to resort to within the provisions of the Immigration Ordinance, but certainly not by way of appeal against that decision.”
THIS APPLICATION
11. By a summons taken out on 4 January 2023, the Applicant applied to the Court of Appeal for an extension of time to appeal against the Order. In the summons, the Applicant stated the following:
“Please extend time for me to appeal because I failed to appeal as I did not get the High Court letter on time. I applied to extend time to the High but the High Court did not extend.” [sic]
12. In his affirmation filed on the same date, the Applicant said that he did not agree with the decision of the court.
13. In his written submissions dated 18 January 2023, the Applicant stated that he had “problem” in his country, and his enemy wanted to kill him. He also alleged that the case officer of the Immigration Department did not like him, and there were many “error[s] of process”. He failed, however, to identify the alleged error(s).
DISCUSSION
14. 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.
15. The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
16. The Court of Appeal’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. In particular, 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 judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).
17. Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
18. The Applicant has failed to point to or show any error in the Judge’s decision of 22 June 2020, and has failed to raise any viable ground of appeal against the Order.
19. There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.
DISPOSITION
20. The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 4 January 2023 is dismissed.
(Godfrey Lam)
Justice of Appeal
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(Anderson Chow)
Justice of Appeal
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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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[4] 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.
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