MEHMOOD ADIL v. TORTURE CLAIMS APPEAL BOARD

CAMP 254/2020

[2021] HKCA 1150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 254 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 84 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 10 June 2020, Deputy High Court Judge Bruno Chan refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 13 August 2020, 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 24 June 2020.  The application was dismissed by the judge on 8 December 2020[2].

3.  On 23 December 2020, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal against the decision of the judge dated 10 June 2020.

4.  The applicant is a national of Pakistan.  He is 37 years old.  He entered Hong Kong illegally on 21 May 2013 and was arrested by the police on the following day.  He raised his torture claim on 24 May 2013 which was later taken as a non-refoulement claim under the unified screening mechanism.  His claim was made on the basis that if he returns to Pakistan he will be harmed or killed by his father’s cousin over a land dispute and/or by the family of his wife whom he married in Hong Kong against their wishes.  

The Director’s decisions

5.  By a Notice of Decision dated 19 January 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 28 December 2016, 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 17 January 2017.  The applicant chose not to give evidence at the hearing but only confirmed that he would rely on the materials in the hearing bundle. 

8.  The Board found that the previous ill treatments in the applicant’s case did not attain a level of minimum severity and were not a torture as defined.  The Board further held that the applicant has failed to establish that he will have a genuine and substantial risk of facing any ill treatment which attains a minimum level of severity in the future.  Moreover, the Board considered there is no evidence to suggest that any person with official capacity or so related was involved in the applicant’s case or that he will face harm from the Pakistani government that would place his life at risk.  Therefore, the appeal was dismissed by the Board on 12 January 2018.

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 17 January 2018 for leave to apply for judicial review against the decisions of the Director and the Board.  He only stated that the decisions of the Director and the Board are not correct and they have failed to consider the realities in Pakistan, without giving any particulars for his intended challenge.

The judge’s decision

10.  The applicant attended the hearing before DHCJ Bruno Chan on 9 July 2019.  The judge considered that the applicant’s assertions in his affirmation are broad and vague without particulars, specifics or elaboration.  The judge also held that the applicant’s problems are private disputes even according to the applicant’s own case.  There is no error of law, procedural unfairness or failure to apply high standards of fairness in the assessment of the applicant’s claim by the Director and the Board.  The judge concluded that there is no prospect of success in the intended judicial review and dismissed the leave application on 10 June 2020.

Grounds of intended appeal

11.  The applicant stated his grounds of appeal in his written submissions as follows:

(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.

Analysis and disposition

12.  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.

13.  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 June 2020.  The applicant took out a summons at the court below on 13 August 2020.  He was late by more than a month[7].

14.  The applicant explained that the time for appeal has already expired when his landlord gave him his mail.  However, he did not provide any further particulars such as when he received the decision.  Even if the court is minded to give him the benefit of the doubt and accept his explanation for the delay, 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[8].

15.  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.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated 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.  In the present application, the ground concerning the Board’s assessment of the risk of torture was not raised at the court below.  An appeal is not the occasion for introducing new grounds after the original grounds failed at the court below[9]. In any event, apart from considering the applicant’s past experience, the Board has also assessed the applicant has failed to establish that he will have a genuine and substantial risk of facing any ill treatment in the future.

17.  As for the ground on the failure to call for psychological and psychiatric evaluation, this ground was also not raised previously and the applicant has not demonstrated why such evaluation is necessary in his case. 

18.  The rest of his grounds are just bare assertions without basis or merits.  In particular, the applicant has failed to show that the judge was wrong in refusing his leave application.  He also failed to adduce any evidence to refute the Board’s findings.

19.  For these reasons, there is no prospect of success in his intended appeal.  We refuse to extend time to appeal against the judge’s decision of 10 June 2020 and dismiss the summons filed on 23 December 2020.