JAWAD MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 63/2022

[2022] HKCA 1104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 63 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1944 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.  On 15 December 2021, Deputy High Court Judge K W Lung refused to grant leave for the applicant to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 8 February 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there is no realistic prospect of success in the intended appeal[2].

3.  On 21 February 2022, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal.

4.  The applicant is a national of Pakistan. He is 38 years old. He entered Hong Kong illegally on 12 May 2016 and was arrested by the police on the same date. On 16 May 2016, he lodged a non-refoulement claim. His claim was made on the basis that he would be harmed or killed by members of the Pakistan Muslim League (N) (“PML(N)”) and is worried he would be arrested by the police in Pakistan for murder.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 25 January 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement 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 21 August 2018. Although the Board accepted that the applicant had encountered the alleged incidents and sustained injuries inflicted by the PML(N) members, it was found that the applicant should be excluded from protection under Article 1F of the 1951 Convention relating to the Status of Refugees as he had committed serious non-political crime by killing three people before coming to Hong Kong. The Board further found that the applicant’s injuries did not attain the requisite minimum severity. Besides, the Board noted that the applicant would be likely to face capital penalty for murder but considered that he failed to demonstrate there is a real risk that the Pakistani government would violate his rights protected by BOR 2. Thus, the Board dismissed the appeal on 12 October 2018.

The judge’s decision

7.  On 14 September 2018, the applicant filed a Form 86 and an affirmation to apply for leave to bring judicial review against the Board’s decision. The applicant only stated that he could not go back to his home country because his life is still in danger back there without specifying any grounds of his intended challenge against the Board’s decision. As he did not request for an oral hearing, Deputy High Court Judge K W Lung considered the application on paper. The judge found that the applicant did not have any valid ground in support of his leave application and there is no error of law or procedural irregularity in the decision of the Board. Thus, the judge concluded that the intended judicial review has no realistic prospect of success and dismissed the leave application on 15 December 2021.

Grounds of appeal

8.  The applicant stated his intended grounds of appeal in the written submissions which may be summarised as follows:

(1)  the judge failed to find error in the Board’s decision but the Board made many errors;

(2)  the court did not want to listen to the applicant’s complaint about his country; and

(3)  the court took sides with the Director.

Analysis and disposition

9.  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.

10.  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 15 December 2021. The applicant took out a summons in the court below on 10 January 2022. He was late for 12 days. He explained that he was late because he did not receive the High Court judgment.

11.  The judgment was sent to the applicant’s address as stated in the notice of change of address[7] filed by him on 10 December 2018 by post on 15 December 2021. It is noted that the applicant stated a new address in his summons for extension of time[8] filed at the court below on 10 January 2022 but he did not file notice of change of address to inform the court of his new address.

12.  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 delay in the present case is not justified.

13.  As the delay is not excusable, 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 in the present application are just bare assertions without particulars and evidence in support. In particular, he failed to identify the alleged errors in the Board’s decision and did not put forward evidence to refute the Board’s findings. He 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.

17.  For these reasons, there is no prospect of success, let alone real prospect of success, in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judgment of 15 December 2021 and dismiss the renewed application for leave to appeal filed on 21 February 2022.