IDREES MUHAMMAD USMAN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 442/2021

[2022] HKCA 415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 442 OF 2021

(ON APPEAL FROM HCAL NO 360 OF 2018)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 7 October 2021, the Applicant took out a summons with a supporting affirmation applying for “leave to appeal” out of time against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 10 August 2021 refusing to grant the Applicant an extension of time to appeal against his earlier order dated 4 May 2021 whereby the Judge refused to grant the Applicant leave to apply for judicial review.

2.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.

BACKGROUND

3.  The Applicant is a national of Pakistan.  He arrived in Hong Kong on 18 August 2011, and when he was refused entry by the Immigration Department, he raised a torture claim on the basis that if he returned to Pakistan, he would be harmed or killed by a former business customer over a monetary dispute in his home district.  When his torture claim was rejected, he sought non-refoulement protection on the same basis.  Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2021] HKCFI 1226).

4.  Having previously rejected the Applicant’s non-refoulement claim based on the risk of torture[1], by a Notice of Decision dated 29 November 2016, the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim on the remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

5.  On 2 December 2016, the Applicant appealed the Director’s Decision to the Torture Claims Appeal Board (“the Board”). On 20 April 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”).  The Board found serious inconsistencies and discrepancies in the Applicant’s evidence and that his account was fundamentally and markedly different from the one previously given to the Director.  The Board concluded that the Applicant had fabricated his case and his claim for non-refoulement protection failed on all applicable grounds.

THE JUDGE’S DECISION

6.  On 11 July 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

7.  On 4 May 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.  At §§12-14 of the Form CALL-1, the Judge stated as follows:

“12. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 23-35 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

8.  On 20 May 2021, the Applicant issued a summons applying for extension of time to appeal.  On 10 August 2021, the Judge refused to extend time for the Applicant’s appeal and dismissed his application.

THIS APPLICATION

9.  By a summons taken out on 7 October 2021, the Applicant applied to this Court for leave to appeal out of time against the Judge’s order dated 10 August 2021.  In his supporting affirmation filed on 7 October 2021, the Applicant complained that he was unrepresented and did not have access to any legal advice.  He stated that there was a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review, without providing any further particulars.

10.  The Applicant did not lodge any written submissions with the court in accordance with the directions of the Registrar of Civil Appeals dated 7 October 2021.

DISCUSSION

11.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.

12.  In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

13.  The prospect of success of the intended appeal is important.  The court will not grant extension to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

15.  The Applicant’s delay of 2 days in lodging his appeal is not substantial, and we shall focus on the merits of the Applicant’s intended appeal.  There is no merit in the Applicant’s complaint that he had no legal representation.  It is well established that a high standard of fairness does not include the provision of legal representation at all stages of a non-refoulement claim.  The Applicant has not provided any particulars or shown any errors in the Judge’s decision in refusing to grant leave to apply for judicial review. 

16.  The Applicant has failed to raise any reasonably arguable ground of appeal against the Judge’s decision.  There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

17.  The application for extension of time to appeal is refused, and the Applicant’s summons of 7 October 2021 is dismissed.