KHADIM UMAIR v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 186/2021

[2021] HKCA 1988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 186 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1257 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 1 March 2021, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1].

2.  On 5 May 2021, the applicant’s application for extension of time to appeal against the said decision was dismissed by the judge as the applicant failed to show any reasonable prospect of success in the intended appeal^[2].

3.  On 24 May 2021, the applicant filed the present summons with the Court of Appeal but he has not stated clearly the relief sought in the summons.  The judgment and order dated 5 May 2021 were exhibited to his supporting affirmation.  This application should be treated as a renewed application for leave to appeal out of time against the decision of DHCJ Lung dated 1 March 2021: 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 37 years old.  He entered Hong Kong illegally and was arrested by the police on 9 March 2016. He lodged a non-refoulement claim on 13 March 2016 on the basis that he will be harmed or killed by the Ansari family because his father had grudges with them.

5.  By a Notice of Decision dated 23 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 and attended the hearing before the Board on 16 April 2018.  The Board found significant discrepancies in the story the applicant told the Board and the story he gave to the Immigration Department.  He even failed to recall the name of the family who allegedly had been opposing his father for a long time.  The Board also found the applicant’s case lacking in significant details and evidence in support.  Therefore, the Board did not accept any part of his claim.  There was also no evidence of severe physical or mental pain in his case.  The Board also found that, even assuming his claim asto be true, the actor of potential harm in his case iswas not a state actor but a private individual and the applicant cancould safely and reasonably relocate to other parts of Pakistan.  Thus, the Board dismissed the appeal on 22 June 2018.

The judge’s decision

7.  On 3 July 2018, the applicant applied for leave to apply for judicial review against the decision of the Board.  His ground is that the Board’s decision is unfair and erroneous.  As he did not request for an oral hearing, DHCJ Lung considered the application on paper. 

8.  The judge held that the applicant’s ground is not supported by any evidence or specifics.  The judge found there is no error of law or procedural unfairness in the Board’s decision.  Thus, the judge concluded that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 1 March 2021.

Grounds of appeal

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

10.  He made the following contentions in his written submissions:

(1)  The same level of threat still exists in Pakistan.  The applicant’s life will be in great peril if he goes back to Pakistan;

(2)  The adjudicator failed to make sufficient enquiry before finalizing the decision and failed to inquire from the Pakistani authorities; and

(3)  The adjudicator dismissed the appeal without any reason.

Analysis and disposition

11.  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.

12.  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 judge’s order was made on 1 March 2021.  The applicant took out summons in the court below on 17 March 2021.  He was late for 2 days and he has not provided any reason for the delay.

13.  Where a delay is inexcusable although insubstantial, 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.  In assessing the merits 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.

15.  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 decision of the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  The applicant’s grounds raised in his submissions for the present summons were not raised before the court below.  These new grounds will not be entertained by the Court of Appeal as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below^[7].

17.  In any event, the applicant’s complaint that the adjudicator dismissed the appeal without any reason is totally without basis. The adjudicator had given detailed reasons for the dismissal of the appeal in the decision dated 22 June 2018.  The rest of his grounds are just bare assertions without evidence in support.  The applicant failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

18.  For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 1 March 2021 and dismiss the summons filed on 24 May 2021.