ABBAS RAZA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 4 /2021

[2021] HKCA 989

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 4 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1199 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 the applicant’s application for leave to seek judicial review of 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 8 July 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 heard by the judge on 30 September 2020 and was dismissed on 10 November 2020^[2].

3.  On 4 January 2021, the applicant filed the present summons indicating that he wanted to challenge the decision of the High Court which refused his application for judicial review.  This application should be treated as a renewed application for leave to appeal out of time against the judge's decision of 10 June 2020 (see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.  The applicant is a national of Pakistan.  He is 36 years old.  He entered Hong Kong illegally on 19 October 2006 and was arrested by the police on the same day.  He lodged a torture claim which was rejected by the Director on 13 September 2012.  He then lodged a non‑refoulement claim on 19 February 2014 on the basis that if he returns to Pakistan he will be harmed or killed by a local elected official because of a land dispute.

The Director’s 1st decision

5.  By a Notice of Decision dated 30 October 2015, the Director rejected the applicant’s claim on BOR 3 risk^[3] and persecution risk^[4].

The Board’s 1^st decision

6.  The applicant appealed against the Director’s decision on BOR 3 risk and persecution risk to the Board.  The Board assessed that, due to the nature, duration and effect of any harm or threats on the applicant, the ill-treatment he would face if refouled would not attain a minimum level of severity.  The Board further held there is nothing to suggest that the problems arose due to race, religion, nationality, membership of a particular social group or political opinion.  The Board also considered that the risk of harm, if any, can be avoided if the applicant moves to another place in Pakistan.  Therefore, the Board dismissed the appeal on 22 September 2016.

The Director’s further decision

7.  On 1 February 2017, the Director invited the applicant to submit additional facts which may be relevant to his non-refoulement claim under BOR 2 risk^[5]. Upon receiving and considering the applicant’s further submissions, the Director rejected the applicant’s claim on all applicable grounds including any other absolute or non-derogable rights under BOR 2 risk by a Notice of Further Decision dated 8 May 2017.

The Board’s 2^nd decision

8.  The applicant lodged an appeal to the Board against the Director’s further decision.  He attended the oral hearing before the Board on 12 April 2018.  The Board held that the matters complained of by the applicant had no relevance to the right protected by BOR 2.  The alleged dispute is private in nature and there is no evidence which shows that he would be at risk of harm from capital punishment inflicted by the government of Pakistan or face harm from the Pakistani government that would put his life at risk. Thus, his appeal was dismissed by the Board on 22 June 2018.

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 26 June 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  He put forward the following grounds for his intended challenge:

(1)  lack of legal representation in his appeal before the Board;

(2)  lack of legal assistance for not providing him with the service of an interpreter during the process of his appeal to the Board;

(3)  failure on the part of the adjudicator to take into account the additional facts and grounds submitted by him to the Board;

(4)  failure on the part of the Board to explain its reasons for rejecting his appeal; and

(5)  failure on the part of the Director and the Board to properly consider the relevant country of origin information (“COI”) as to the corruptions and malpractice of the legal system and the police in Pakistan.   

The judge’s decision

10.  A hearing was conducted before DHCJ Bruno Chan on 9 September 2019.  The judge rejected Ground (1) as it was established by case law that the high standards of fairness do not require that a non‑refoulement claimant must have an absolute right to free legal representation at all stages of the proceedings.  The judge found that the applicant already had the benefit of legal representation in presenting his case to the Director, and he was also able to testify and make representation in his appeal hearing before the Board. 

11.  Ground (2) failed as the judge found that the applicant had already been assisted by an interpreter at his oral hearing before the Board during which he was able to give evidence and answer questions regarding his BOR 2 risk without any problem. 

12.  Grounds (3) and (4) were rejected because they were contrary to the facts as evidenced by the Board’s detailed analysis in its written decisions.

13.  The judge held that Ground (5) is without merit as the applicant did not provide any particulars or elaborations of any error in the assessment of the Director and the Board or their reliance of the COI.

14.  The judge assessed there is no error of law or procedural unfairness in the decisions of the Director and the Board or any failure on their part to apply high standards of fairness in their consideration of the claim.  The judge concluded that the intended judicial review does not have any prospect of success and dismissed the application on 10 June 2020.

Grounds of intended appeal

15.  The applicant did not provide any particular grounds of appeal in his summons or affirmation.

16.  He stated the following contentions in his written submissions:

(1)  his enemies tried to kill him in Pakistan.  He came to Hong Kong to save his life;

(2)  his problem is true and very serious.  It is not possible for him to return;

(3)  the screening system in Hong Kong is not good.

Analysis and disposition

17.  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.

18.  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 8 July 2020.  He was late by two weeks.

19.  The applicant explained at the hearing below that he did not inform the court of his change of address and when he got the decision from his former address, the time for appeal has already expired. 

20.  The applicant’s explanation for the delay is not justifiable as 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). 

21.  As his 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.

22.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

23.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

24.  In the present application, the applicant has not provided any ground to show that the judge was wrong in dismissing his application.  He failed to demonstrate that there is any prospect of success in the intended appeal.  We therefore refuse to grant leave to appeal out of time and dismiss the summons filed on 4 January 2021.

[1] [2020] HKCFI 1085

[2] [2020] HKCFI 2731

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.