MUHAMMAD SHAHBAZ v. TORTURE CLAIMS APPEAL BOARD

CAMP 528/2022, [2023] HKCA 629

On appeal from [2022] HKCFI 1226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 528 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2101 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 29 April 2022, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 27 June 2022, the applicant filed a summons for extension of time to appeal against that decision at the Court of First Instance. The applicant’s summons was dismissed by the judge on 9 November 2022[2].

3.  On 9 December 2022, 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 entered Hong Kong illegally on 1 February 2014 and was arrested by the police on 1 April 2014. In April 2014, he raised a non-refoulement claim on the basis that he would be harmed or killed by his uncle and cousin over their political dispute if he returned to Pakistan.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 22 February 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 27 June 2018. The Board considered that nothing the applicant has said about his circumstances in Pakistan is reasonably likely to be true because of the significant inconsistencies in his evidence for which he failed to explain at the hearing. Based on the available information, it appears that the applicant is not receiving treatment apart from the provision of medication to be taken daily, following two heart attacks. He was scheduled to have an angiogram in 2019. The Board assessed that returning to Pakistan will not sever the applicant from vital, life-saving medical treatment and will not place him at risk of imminent death in degrading circumstances or of a complete absence of treatment[7]. Based on the country of origin information, the Board found it is more likely than not that the applicant would be able to access cardiac treatment he requires at public expense and in hospitals close to his place of residence in Pakistan[8]. The Board concluded that the applicant failed to substantiate his non-refoulement claim under the applicable grounds and dismissed the appeal on 20 September 2018.

The intended judicial review

7.  On 3 October 2018, the applicant filed a Form 86 and an affirmation in HCAL 2101/2018 to seek leave to bring judicial review against the Board’s decision. He only stated in his supporting affirmation that his life is not safe in Pakistan but did not put forward any specific grounds for his intended challenge against the Board’s decision.

The judge’s decision

8.  DHCJ Bruno Chan dealt with the application on paper as the applicant did not request an oral hearing for his application. The judge found that the applicant does not have any reasonably arguable basis to challenge the Board’s decision. The judge also found there is no error of law, procedural unfairness or failure to apply high standards of fairness in the decisions of the Director and the Board. As there is no prospect of success in the applicant’s intended judicial review, the judge dismissed the leave application on 29 April 2022.

Grounds of intended appeal

9.  The applicant only stated in his affirmation that he does not agree with the decision of the court, without stating any specific grounds against the judge’s decision. He did not lodge any written submissions in support of his application.

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 29 April 2022 and the applicant was late by more than 5 weeks when he took out the summons for extension of time to appeal at the court below on 27 June 2022. He explained that he did not receive the judgment from the court.

12.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). The court sent a letter on 7 April 2022 notifying the applicant that the decision will be ready for handing down within the next 2 weeks. On 29 April 2022, the court sent the decision by post to the applicant’s address as stated in his Form 86. It is noted that the address stated in the applicant’s summons for extension of time to appeal filed on 27 June 2022 is different from the address stated in his Form 86 but he has not filed any notice of change of address with the court. Under these circumstances, the applicant’s explanation for the substantial delay is not justifiable.

13.  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.

14.  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.

15.  In the present application, the applicant failed to show 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 in his decision.

16.  There is no prospect of success in the intended appeal. We therefore refuse to grant extension of time for the applicant to appeal against the judge’s decision of 29 April 2022 and dismiss the summons filed on 9 December 2022.