MALIK KAMRAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 486/2022, [2023] HKCA 518

On appeal from [2022] HKCFI 1824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 486 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1237 OF 2020)

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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 28 June 2022, Deputy High Court Judge K W Lung 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 24 October 2022, the applicant filed a summons for extension of time to appeal against the said decision. The summons was dismissed by the judge on 17 November 2022[2].

3.  On 22 November 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 of 46 years old. He came to Hong Kong as a visitor on 25 March 2003 and subsequently overstayed. He was arrested by the police on 26 June 2007 and was referred to the Immigration Department on 28 June 2007. He lodged a torture claim on 14 July 2007 which was rejected by the Director of Immigration (“the Director”) on 16 September 2011. His petition against the Director’s decision was rejected by the adjudicator (Torture Petitions) on 24 October 2011.

5.  By written representations dated 11 April 2014 and 2 May 2014, he claimed non-refoulement protection on the basis that, if refouled, he would be killed by Sheikh Anwar Saeed and his networks in the Pakistan People’s Party (“PPP”) because of his affiliation with the Pakistan Muslim League (Nawaz).

6.  In Hong Kong, he was convicted of a number of criminal offences and sentenced to imprisonment. His last conviction was on a charge of trafficking/possession of dangerous drug and was sentenced to 5 years’ imprisonment in 2016.

The decisions of the Director and the Board

7.  As the applicant’s torture claim had previously been rejected by the Director, his non-refoulement claim was only assessed by the Director on BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] under the unified screening mechanism. By a Notice of Decision dated 18 May 2018, the applicant’s non-refoulement claim was rejected by the Director.

8.  The applicant appealed against the Director’s decision to the Board on 18 November 2019, about 17 months after the prescribed period for appeal. The Board considered that the applicant failed to give sufficient explanation for the substantial delay. The Board also noted that PPP was no longer in power in Pakistan and found that the applicant failed to show he would continue to face harm in Pakistan now or in the foreseeable future, some 17 years after his last departure[6]. The Board was not satisfied that it would be unjust not to allow the late filing of the notice of appeal. Thus, the Board rejected the late filing of the appeal on 2 April 2020.

The intended judicial review

9.  The applicant filed a Form 86 to seek leave to bring judicial review concerning his non-refoulement claim on 19 June 2020. He put forward the following grounds for his intended challenge in his affirmation:

(1)  he believes that the Director and the Board are wrong in their decisions because they had not given due consideration to his right to life and the Board had not given him sufficient time and opportunity to arrange evidence to support his appeal;

(2)  the Director had not considered the issue of state acquiescence as he had been ill-treated at the state law enforcement agencies;

(3)  although the Director had set out the country of origin information in support of the applicant’s claim, he did not give weight to such information in his consideration; and

(4)  the Director did not take into consideration the corruption and incompetency of the administration in the applicant’s country.

The judge’s decision

10.  The applicant attended the hearing of the leave application before DHCJ Lung on 25 May 2022. The judge directed that the Form 86 be amended to the effect that the Board is the proposed respondent and the Director the interested party. The judge held that the applicant does not have any valid reasons to challenge the Board’s decision. He did not find any error of law or procedural unfairness in the Board’s decision and considered that the findings of the Board are not open to challenge as Wednesbury unreasonable or irrational. As there is no realistic prospect of success in the applicant’s intended judicial review, the judge dismissed the leave application on 28 June 2022.

Grounds of intended appeal

11.  In the summons filed on 22 November 2022, the applicant stated that he failed to appeal as he did not get the High Court letter on time.

Analysis and disposition

12.  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.

13.  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 28 June 2022. When he took out the summons for extension of time to appeal at the court below on 24 October 2022, the applicant was late by about 2 months exclusive of the court’s summer vacation in August.

14.  He stated that he did not lodge the appeal within the prescribed time as he did not receive the letter from court on time but did not specify when he actually received the letter. The applicant had confirmed his address at the correctional institution with the court at the hearing on 25 May 2022. The court sent the judge’s decision by post to the applicant’s address on the date of handing down the decision. Under these circumstances, the applicant’s explanation for the delay is not justifiable.

15.  As the applicant’s delay is inexcusable, he must show a real prospect of success on the merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

16.  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.

17.  In the present application, the applicant failed to provide any grounds to demonstrate 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 decision.

18.  There is no prospect of success in the intended appeal. We refuse to extend time for the applicant to file his notice of appeal and dismiss the summons filed on 22 November 2022.