WASEEM QAISAR alias MUHAMMAD ZAHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 359 /2023, [2024] HKCA 1119

On appeal from [2022] HKCFI 3588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 359 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 645 OF 2019)

________________________

________________________

____________________

J U D G M E N T

____________________

Hon Kwan VP (giving the Judgment of the Court):

1.  On 6 December 2022, 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 28 February 2023, the applicant filed a summons at the Court of First Instance to seek extension of time to appeal against that decision.  The summons was dismissed by the judge on 23 March 2023^[2].

3.  On 30 November 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 last entered Hong Kong on 21 August 2003 as a visitor and subsequently overstayed.  He was arrested by the police on 24 November 2006.  He lodged a torture claim on 7 June 2007.  The Immigration Department took no further action regarding his torture claim as the applicant absconded.  He requested to reactivate his claim on 12 February 2014.  His claim was treated as withdrawn on 10 May 2016 as he failed to return the completed non-refoulement claim form.  He then requested to re-open his non-refoulement claim on 30 December 2016 and his request was rejected on 8 February 2017.  His appeal against the rejection was allowed by the Board.  His claim was made on the basis that he will be harmed or killed by people from Pakistan Muslim League-Q because he is a member of the Pakistan People’s Party.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 24 September 2018, 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.  The appeal was heard before the Board on 13 December 2018.  The Board considered the applicant dishonest because of his various criminal convictions in Hong Kong and the fact that he has absconded from recognizance for 6.5 years.  The Board found that the applicant’s assertions are vague, illogical and not supported by reliable evidence.  As there is no acceptable evidence to support the applicant’s claim, the Board dismissed the appeal on 4 January 2019.

The intended judicial review

7.  On 6 March 2019, the applicant filed a Form 86 and an affirmation in HCAL 645/2019 to seek leave to bring judicial review against the Board’s decision.  He only reiterated that his life is in danger in his home country without putting forward any grounds against the Board’s decision.

The judge’s decision

8.  DHCJ K W Lung considered the leave application on paper as the applicant did not request for an oral hearing.  The judge held that the applicant has no valid reason to challenge the Board’s decision.  The judge further found there is no error or law or procedural unfairness in the Board’s decision.  Therefore, the judge dismissed the leave application on 6 December 2022.

Grounds of intended appeal

9.  The applicant stated his grounds of appeal in his written submissions, which may be summarised as follows:

(1)  His case was determined unfairly by the Director and the Board.  They have not taken into account his unique situation fairly and sequentially;

(2)  The Board made a number of errors.  It erred by failing to conduct specific assessment of the risk of harm which the applicant would face if he is refouled to Pakistan;

(3)  The Board failed to analyse the substance of his claim despite the concrete evidence he has provided;

(4)  He has been denied an opportunity to establish his non‑refoulement claim;

(5)  The existence of legal representative in the stage of the proceedings before the Director does not necessarily guarantee that personal specific risks have been properly advanced and considered in subsequent stages;

(6)  He is legally unrepresented and does not have proper knowledge to raise grounds regarding his judicial review and the errors he made in the proceedings were unintended;

(7)  The decision to refuse his judicial review deprived him of the high standard of fairness.

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 6 December 2022 and the applicant was late by more than 7 weeks when he took out the summons at the court below on 12 February 2023.  He explained that he was unaware of the time limit for appeal^[7]. 

12.  The applicant’s assertion about his ignorance of the time limit for appeal cannot be accepted as justification for his failure to comply with the same.  As the 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.  The applicant’s grounds in the present application were not raised in his leave application before the judge.  The Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

15.  In any event, the applicant’s grounds are just bare assertions.  He failed to identify particular aspects which may be applicable to his specific situation but were not considered by the decision makers and/or particular evidence which can support his claim.  He also failed to put forward any reasonably arguable grounds against the judge’s decision to demonstrate 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.  For the above reasons, there is no prospect of success in the intended appeal.  We refuse to grant extension of time to appeal the decision of 6 December 2022 and dismiss the summons filed on 30 November 2023.