RAZA TAHIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 75/2023, [2023] HKCA 793

On appeal from [2022] HKCFI 3099

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 75 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2384 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 25 October 2022, Deputy High Court Judge K W Lung dismissed the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non-refoulement claim[1].

2.  On 6 December 2022, the applicant filed a summons for extension of time to appeal against the said decision. The summons was dismissed by the judge on 17 January 2023[2].

3.  On 17 February 2023, 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 claimed that he sneaked into Hong Kong by boat on 3 September 2013. He was arrested by the police for illegally remaining in Hong Kong on 22 October 2013. On 5 March 2014, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by Shia Muslims because of religious dispute and by a land seller because of a land dispute.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 26 January 2017, 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 appealed against the Director’s decision to the Board. He attended the hearing before the Board on 13 September 2018. In respect of the alleged religious dispute, the applicant failed to recall any of the difficulties he encountered previously and failed to provide any information about the alleged clashes. The applicant’s testimony before the Board concerning the alleged land dispute was substantially different from the version he gave to the immigration officer. In general, his account was vague, self-contradictory and evasive. The Board therefore held that no credence can be attached to any of the applicant’s claims and dismissed the appeal on 25 October 2018.

The judge’s decision

7.  On 29 October 2018, the applicant filed a Form 86 and an affirmation in HCAL 2384/2018 to seek leave to bring judicial review against the Board’s decision. In his supporting affirmation, he only stated that he was not satisfied with the decision and that his life is still in danger in his country.

8.  DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The judge found that the applicant has no valid reason to challenge the Board’s decision and there is no error of law or procedural unfairness in the Board’s decision. Thus, the judge refused the leave application on 25 October 2022.

The present summons

9.  On 17 February 2023, the Registrar of Civil Appeals directed the applicant to lodge written submissions in support of his present summons on or before 3 March 2023. It was further directed that the applicant will be deemed to have abandoned his right to rely on written submissions and the application will be referred to the Court of Appeal for consideration based on the available documents and materials if he fails to lodge written submissions before the said deadline. The applicant did not lodge any written submissions as directed.

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 25 October 2022 and the applicant was late by 1 month when he took out the summons at the court below on 6 December 2022. He explained in the affirmation filed with the court below that he got the judgment late but he did not state when he actually received the judgment nor did he provide any proof of postal delay. The record shows that the court had sent the judgment to the applicant’s address by post on 25 October 2022. Under these circumstances, the applicant’s explanation for the delay is not justifiable.

12.  Where a delay is inexcusable, the applicant 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.  In the summons and affirmation in support, the applicant only asks the court to give him more time and one more chance, without providing any grounds of appeal.

15.  As the applicant has failed to show any prospect of success in the intended appeal, we refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 25 October 2022 and dismiss the summons filed on 17 February 2023.