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

CAMP 11/2022

[2022] HKCA 899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 11 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2476 OF 2018)

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

1.  On 26 January 2021, Deputy High Court Judge CP Pang 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 30 November 2021, DHCJ P Li dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal[2].

3.  On 10 January 2022, the applicant filed the present summons with the Court of Appeal to appeal the order made by DHCJ Li. In light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of DHCJ Pang dated 26 January 2021.

4.  The applicant is a national of Pakistan. He is 33 years old. The applicant claimed he entered Hong Kong illegally on 21 August 2009 and was arrested by the police on the same day. He lodged a torture claim on 23 August 2009 which was subsequently withdrawn on 6 February 2010. On 13 April 2010, he requested to reopen his torture claim. He was later arrested in August 2012 for taking up unapproved employment, and was convicted and sentenced to 14 months’ imprisonment. The applicant formally submitted his torture claim form on 27 March 2013 on the basis that he would be harmed or killed by his uncle over a land dispute involving an inheritance from his grandfather.

5.  By a Notice of Decision dated 30 August 2017, the Director rejected the applicant’s claims on all applicable grounds including torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s Notice of Decision to the Board and attended the hearing before the Board on 7 September 2018. The Board found the applicant’s evidence inconsistent and his claims unsubstantiated. In essence, the Board found the applicant had fabricated his evidence, and his evidence was rejected as a whole. The Board was not satisfied that the applicant would suffer ill-treatment if he is returned to Pakistan. It was also found that it would not be unreasonable for the applicant to relocate elsewhere in Pakistan. Therefore, his appeal against the Director’s decision was dismissed by the Board on 22 October 2018.

The judge’s decision

7.  On 6 November 2018, the applicant applied for leave to apply for judicial review against the decision of the Board. He did not supply any grounds in support of his application in his Form 86 or in his supporting affirmation. As he did not request for an oral hearing, DHCJ Pang considered the application on paper.

8.  The judge held that there was nothing to show the Board had committed any error in the application of the law, made irrational findings, or that there was procedural unfairness in coming to its conclusions. Thus, the judge found that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 26 January 2021.

Grounds of appeal

9.  The applicant did not provide any grounds of appeal in his summons or his affirmation in support, save that he disagrees with the decision of the judge claiming that his life is still in danger. In his written submissions, he asserted that he was deprived of the right to make “full ground for appeal” by not having the determination translated or read back to him. He claimed that the lack of assistance provided to him is an error of law or procedure, or evidence of procedural unfairness, or failure to adhere to a high standard of fairness and alleged there was “real procedural unfairness throughout the case”.

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 success 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 judge’s order was made on 26 January 2021. The applicant took out a summons in the court below on 22 March 2021 was late for about six weeks. This is not insubstantial. The applicant’s explanation for the delay was that he received the decision late.

12.  This explanation is not acceptable. As the courts have stated in in past, 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).

13.  As the applicant’s delay is not insubstantial and inexcusable, he must show a real prospect of success on merits: 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.  In the present case, the applicant did not put forward any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant leave for him to bring judicial review.

17.  In respect of the alleged lack of translation service and assistance raised for the first time in his submission before us, the applicant had the assistance of the Duty Lawyer Service when he submitted a completed Supplementary Claim Form dated 11 July 2017 and when he attended another interview with the Immigration Department on 27 July 2017. Interpretation service was again provided to him when he attended the hearing before the Board on 7 September 2018 for his appeal. The applicant did not give any particulars to show that the Board had failed to apply high standards of fairness or acted in a procedurally unfair manner. He made no specific complaint of any procedural unfairness arising from alleged lack of translation service and assistance in his Form 86 or supporting affirmation placed before the judge. It is not open to him to put forward this complaint as a new ground for the first time in the intended appeal.

18.  In any event, as regards the complaint of lack of language and legal assistance, it has been repeatedly emphasized by the Court of Appeal that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process[7] and that the high standard of fairness required by law would not entail interpretation service being made available to the claimant all the time as he desires[8].

19.  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 26 January 2021 and dismiss the summons filed on 10 January 2022.