RAZA HASAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 423/2022, [2023] HKCA 503

On appeal from [2022] HKCFI 1199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 423 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 441 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1.  On 27 April 2022, Deputy High Court Judge To 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 22 September 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show any reasonable prospect of success in his intended appeal[2].

3.  On 13 October 2022, the applicant filed the present summons with the Court of Appeal to renew his application for leave to appeal out of time against the decision of the judge dated 27 April 2022.

4.  The applicant is a national of Pakistan. He is 47 years old. The applicant was arrested by the police on 15 July 2014 for illegally remaining in Hong Kong and subsequently lodged a non-refoulement claim by way of written representation dated 18 July 2014. His claim is on the basis that he would be harmed or killed by a Sunni cleric named Shahid and his followers due to religious conflicts.

5.  By a Notice of Decision dated 6 March 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim under 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 and attended the hearing before the Board on 15 November 2018. While the Board accepts that the applicant has been assaulted in the past by Shahid, the Board did not accept that it was unsafe for the applicant to return to Pakistan and that he would face any appreciable risk of being subjected to serious or significant harm. The Board held that the applicant only experienced actual harm on two occasions over a number of years, the injuries of which were minor in that the worst injury received was a cut requiring stitches. Further, as conceded by the applicant, he only ever faced any serious problems around the time of Muharram, consistent with the narrative agreed on at the hearing before the Board that nothing actually happened to him during the period of six months immediately before he last departed Pakistan. The Board also took into account the Country of Origin information (“COI”) and was not satisfied on the evidence that the applicant faces more than a remote possibility of being subjected to serious or significant harm by reason of his religion. The Board also rejected his claim on the alternative basis of relocation, noting that the applicant is relatively young, single and has a reasonable level of education and employment experience. In light of its findings, the Board rejected the applicant’s appeal on 12 February 2019.

The judge’s decision

7.  On 18 February 2019, the applicant applied for leave to apply for judicial review against the decisions of the Director and the Board. As the Director’s decision is superseded by the Board’s decision, the former is not susceptible to judicial review. In any event, the applicant did not provide any grounds of appeal in his application and his affirmation in support. He simply annexed the decisions of the authorities to the documents he filed in court. As the applicant did not request for an oral hearing, the judge considered the application on paper.

8.  In his decision, the judge assessed there is no error of law or procedure in the Board’s decision and the Board has adhered to high standards of fairness throughout. The main thrust of the applicant’s grounds is a challenge against the finding of fact by the Board. Having rigorously examined the Board’s decision, the judge was satisfied that the Board had correctly set out the law and key legal principles, correctly identified the issues and observed a very high standard of fairness. The Board therefore concluded there is no realistic prospect of success in the intended judicial review and refused to grant leave for judicial review on 27 April 2022.

Grounds of intended appeal

9.  The applicant did not provide any grounds of appeal in his summons, and merely stated he did not receive the Court documents. In his supporting affirmation, the applicant simply stated he did not wish to be returned to Pakistan. He has not lodged any written submissions within time or at all. He is deemed to have abandoned his right to rely on written submissions.

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 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 27 April 2022. The applicant took out a summons in the court below on 29 June 2022. He was late for about 7 weeks. This is substantial. The explanation given by the applicant was he did not receive documents from the Court.

12.  This is not acceptable. As the Court of Appeal has repeatedly stated, a litigant has the duty 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). This was dealt with by the judge at §§3 and 4 of his decision dated 22 September 2022 in refusing to extend time to appeal.

13.  As the applicant’s delay is inexcusable, he 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.  In the present application, no evidence is produced by the applicant to show that the judge was wrong in refusing to grant leave to bring judicial review to challenge the Board’s decision. The Board is the primary decision-maker and it makes findings on facts relating to matters giving rise to the claim. The bare assertions in the applicant’s supporting affirmation do not assist his present application. There are no arguable grounds of appeal and nothing to suggest any errors of law or procedural unfairness in the Board’s decision.

17.  For the above reasons, there is no prospect of success, let alone real prospects of success, in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to pursue a hopeless appeal against the judge’s decision of 27 April 2022. The summons filed on 13 October 2022 is dismissed.