KAMAL KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 480/2021

[2022] HKCA 546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 480 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 162 OF 2021)

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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 25 October 2021, the Applicant took out a summons with a supporting affirmation applying for “leave to appeal” out of time against the order of Deputy High Court Judge K W Lung (“the Judge”)  dated 7 July 2021 refusing to grant leave to the Applicant to apply for judicial review.

2.  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

3.  The Applicant is a citizen of Afghanistan.  He came to Hong Kong illegally through Shenzhen on 25 December 2019, and was arrested on 22 May 2020.  He lodged a non-refoulement claim with the Immigration Department by way of signification dated 24 May 2020, alleging that if he was refouled back to Afghanistan, he would be harmed or killed by members of the Taliban because he was a solider of the Afghan military.  Details of the Applicant’s claim have been summarised by the Judge at §§4-5 of the CALL-1 Form ([2021] HKCFI 1712).

4.  By a Notice of Decision dated 21 October 2020, the Director of Immigration (“the Director”)  rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

5.  The Applicant appealed the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).  On 5 February 2021, the Board dismissed the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”).  The Board found that all the core assertions of the Applicant in support of his non-refoulement claim were fabricated or were wholly unreliable.  The Board concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

JUDGE’S DECISION

6.  On 17 February 2021, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

7.  On 7 July 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.  At §§12-16 of Form CALL-1, the Judge stated as follows:

“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13 … Assessment of evidence and COI 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.’

14. His grounds in support of this application do not assist his application. The Board has found that he has no factual basis in support of his claim.

15. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

8.  On 23 September 2021, the Judge dismissed the Applicant’s summons taken out on 31 August 2021 for extension of time to appeal.

THIS APPLICATION

9.  By a summons taken out on 25 October 2021, the Applicant applied to this Court for “leave to appeal” out of time against the Judge’s order of 7 July 2021.  In his supporting affirmation filed on 25 October 2021, the Applicant complained that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and the situation in his home country.

10.  The Applicant has failed to lodge any written submissions with the court despite the directions of the Registrar of Civil Appeals dated 25 October 2021.

DISCUSSION

11.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.

12.  In deciding whether to extend time to appeal, this 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.

13.  The prospect of success of an intended appeal is important.  The court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

15.  The Applicant has failed to identify any specific error in the judgment, or raised any viable ground of appeal against the judgment.  In respect of for the Applicant’s complaint that the Judge did not give him an opportunity to clarify his case or the situation in his home country, the Applicant did not request for an oral hearing of the application for leave to apply for judicial review. The Judge was thus entitled to consider the application on paper.

16.  There is no reasonable, or real, prospect of success in the Applicant’s intended appeal.

DISPOSITION

17.  The application for extension of time to appeal is refused, and the Applicant’s summons of 25 October 2021 is dismissed.