ILYAS REHMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 17 /2021

[2021] HKCA 1257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 17 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 177 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 3 June 2020, Deputy High Court Judge Bruno Chan 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 11 August 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 17 June 2020.  The summons was dismissed by the judge on 8 December 2020[2].

3.  On 13 January 2021, the applicant filed with the Court of Appeal the present summons seeking to challenge the judge’s refusal of his leave application.  As the time for appealing has expired, this summons should be treated as a renewed application for extension of time to appeal against the judge's decision of 3 June 2020.

4.  The applicant is a national of Pakistan.  He is 44 years old.  He arrived in Hong Kong on 27 May 2016 as a visitor and subsequently overstayed.  He was arrested by the police on 5 August 2016 and lodged his non-refoulement claim on 7 August 2016.  His claim was made on the basis that he will be harmed or killed by his brother and his brothers-in-law over some family disputes if he returns to Pakistan.  

The Director’s decision

5.  By a Notice of Decision dated 20 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].

The Board’s decision

6.  The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 18 January 2018.  The Board did not accept the applicant’s case because of the significant inconsistencies and discrepancies in the applicant’s account of events.  The Board further considered there is no future risk of serious harm or death even assuming that the applicant’s factual assertions were true as there is no evidence to show there was any real intent of any actual harm or attempt of harm on the applicant and the applicant had not gone into hiding after receiving the alleged death threats.  The Board also found the applicant can relocate to other parts of Pakistan where he will be safe to stay.  Therefore, the appeal was dismissed by the Board on 26 January 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 6 February 2018 for leave to apply for judicial review against the decision of the Board.  He did not state any grounds for his intended challenge in his Form 86 or affirmation.  He only stated the following contentions in his letter to the court:

(1)  The applicant had to escape from Pakistan due to political pressure;

(2)  The politician and criminal named Khwaja Asif, Minister of Foreign Affairs, has created a lot of nuisance in the city and is a corrupt minister.  Although he was suspended from his duties, nothing has changed and he wants to kill the people including the applicant who were whistle blowers of his corruption, criminal and illegal activities.

The judge’s decision

8.  The judge considered that the applicant’s assertions in the letter are not supported by any documentary evidence and have no relevance to his claim which was a family dispute with nothing to do with the political situation in Pakistan.  The judge found that the applicant failed to show any error in law or procedural unfairness in the Board’s decision, or any reasonably arguable basis to challenge the findings of the Board.  Thus, the leave application was dismissed on 3 June 2020.

Grounds of intended appeal

9.  In the present application, the applicant stated his grounds of appeal in his written submissions which may be summarized as follows[7]:

(1)  The Director’s screening process was wrong.  The immigration officer only asked some questions and gave his decision;

(2)  The Board did not give the applicant any lawyer and rejected his appeal.

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 3 June 2020.  The applicant took out a summons at the court below on 11 August 2020.  He was late by more than six weeks even when the period of the Court’s summer vacation in August 2020 is excluded.  The delay is substantial.

12.  The applicant explained at the previous hearing at the court below that he changed his address but he only informed the Immigration Department and did not inform the court so he did not receive the court’s decision.  In fact, the court sent the decision to both the address the applicant previously provided to the court and his new address provided to the court by the Immigration Department.  The mails were not returned to the court.  Moreover, 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).  Under these circumstances, the applicant’s explanation cannot justify his delay.

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.  The applicant’s grounds against the Director and the Board have not been raised in his leave application.  An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[8]. Therefore, the Court of Appeal will not entertain these new grounds. 

16.  In any event, these grounds are bound to fail.  His complaint against the Director is lacking in particulars, elaboration or evidence in support.  Moreover, it has been established that an applicant of non‑refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[9].

17.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated 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 the present application, the applicant failed to put forward any grounds to reverse the judge’s decision. 

18.  For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We refuse to extend time to appeal against the judge’s decision of 3 June 2020 and dismiss the summons filed on 13 January 2021.