FIASAT v. WESLEY WONG, ESQ

CAMP 225/2020

[2021] HKCA 1258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 225 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1370 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):

1.  On 17 July 2019, Deputy High Court Judge K W Lung 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 8 August 2019, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 31 July 2019.  The applicant was absent from the hearing of the summons and the summons was dismissed by DHCJ Lung on 9 October 2019.

3.  On 28 October 2019, the applicant filed a second summons seeking extension of time to appeal against the order of 17 July 2019. DHCJ Lung directed that this summons be treated as an application to set aside the order of 9 October 2019 and for extension of time to appeal.  This summons was heard before DHCJ Bruno Chan on 3 September 2020.  DHCJ Bruno Chan accepted that the applicant was absent as he did not receive the notice of hearing and set aside the order of DHCJ Lung of 9 October 2019.  The judge held that the applicant’s intended appeal is hopeless and refused to grant extension of time to appeal on 7 October 2020[2].

4.  On 30 November 2020, the applicant filed with the Court of Appeal the present summons for leave to appeal against the order of 7 October 2020.  This summons should be treated as a renewed application for extension of time to appeal against the decision of the judge's decision of 17 July 2019: See Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8.

5.  The applicant is a national of Pakistan.  He is 33 years old.  He entered Hong Kong illegally on 28 July 2015 and surrendered to the Immigration Department on 5 August 2015.  He lodged his non‑refoulement claim on 5 November 2015.  He was convicted of the offence of taking employment without the authority of the Director of Immigration (“the Director”) and was sentenced to 15 months’ imprisonment.  The applicant’s non-refoulement claim was made on the basis that he will be harmed or killed by the members of a Sunni organization (“the Organization”) and their associates being related to the terrorist group, the Taliban, if he returns to Pakistan.

The Director’s decision

6.  By a Notice of Decision dated 27 February 2017, 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].

The Board’s decision

7.  The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 13 March 2018.  The Board found that the applicant had never received any ill-treatment from the Organization.  The Board also held that the Organization is an illegal organization and no government officials had been involved.  The Board further found there is no evidence to show that the applicant would be subjected to torture by members of the Organization and the Taliban upon his return to Pakistan. In addition, the Board held that state protection is available to the applicant in Pakistan and the alleged risk is localized as the applicant was able to stay in Rawalpindi without any incidents before he left Pakistan.  Therefore, the appeal was dismissed by the Board on 18 May 2018.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 12 July 2018 for leave to apply for judicial review against the decision of the Board.  He put forward the following grounds for his intended challenge:

(1)  the adjudicator misdirected himself on the law by considering that the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there is a risk of torture in the future;

(2)  the adjudicator failed to carry out sufficient research and inquiry into the country of origin information (“COI”) so that the dismissal of the applicant’s case was founded upon an unfair procedure;

(3)  the adjudicator failed to put any weight on the relevant COI, cherry-picked the COI which is of little or no relevance, relied on outdated COI and arrived at an unreasonable decision;

(4)  the adjudicator failed to evaluate whether there exists in Pakistan a consistent pattern of gross, flagrant or mass violations of human rights;

(5)  the adjudicator failed to assess whether state protection exists in Pakistan under the extended meaning and misdirected himself on the law by erroneously stating what the extended meaning of state protection was;

(6)  the adjudicator took into account irrelevant considerations or considerations that were incorrect or facts not reasonably inferred and failed to take into account facts and inferences that were favourable to the applicant;

(7)  the failure to call for psychological and psychiatric evaluation and reports amounts to procedural impropriety;

(8)  the adjudicator applied the incorrect standard of proof in the decision; and

(9)  the failures of the assigned duty lawyer resulted in a lack of and/or insufficient legal representation for the applicant.

The judge’s decision

9.  The applicant attended the hearing before DHCJ Lung on 27 December 2018.  The applicant told the judge at the hearing that he did not have any complaint against the immigration officer and the Board.  He confirmed that he had had a fair hearing before the Board.  He also confirmed that he understood the Director’s decision and the hearing bundle as his friend had explained them to him. 

10.  The judge found that the applicant failed to show he has reasonable prospect of success in his intended judicial review and dismissed the leave application on 17 July 2019.

Grounds of intended appeal

11.  The applicant stated the following grounds of appeal in his affirmation:

(1)  DHCJ Bruno Chan was wrong in holding that there was no state acquiescence or involvement;

(2)  DHCJ Bruno Chan failed to provide detailed reason in support of his decision.

12.  In his written submissions, he further contended that high standards of fairness are required in the determination of a torture claim on the part of the decision maker and that the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

13.  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.

14.  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 17 July 2019.  The applicant took out a summons at the court below on 8 August 2019.  He was late by eight days.

15.  The applicant explained in his affirmation filed on 8 August 2019 that he did not receive the judge’s decision on time but only found it in the letter box on 4 August 2019.  The applicant’s explanation is acceptable as the delay in the present case is not very substantial.  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].

16.  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.

17.  The applicant’s grounds and submissions are not supported by any evidence.  He also failed to adduce any evidence to refute the Board’s findings.  It does not appear to us there is any prospect of success in his intended appeal.  We exercise our discretion against granting an extension of time to appeal against the judge’s decision of 17 July 2019 and dismiss the summons filed on 30 November 2020.