HASSAN ZAIB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 403/2022

[2023] HKCA 351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 403 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 556 OF 2019)

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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 25 March 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 5 August 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 that he has any reasonable prospect of success in his intended appeal[2].

3.  On 3 October 2022, the applicant filed the present summons with the Court of Appeal to appeal against the refusal of time extension decision of the judge dated 5 August 2022. In light of the decision 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 the judge dated 25 March 2022.

4.  The applicant is a national of Pakistan. He is 29 years old. The applicant entered Hong Kong illegally on 22 October 2014 via the Mainland and was arrested on 4 November 2014. Subsequently on 7 November 2014, he made a non-refoulement claim by way of written representation on the basis that he would be harmed or killed by Azhar Ali and his men due to religious differences.

5.  By a Notice of Decision dated 28 November 2017, 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 25 October 2018. While the Board accepted there was religious conflict in Pakistan, the Board had some doubts on the applicant’s credibility. It found that it was unlikely that Azhar had any intention of killing the applicant as he was already driven out of his home. The Board also found that internal relocation was a viable option and there was no evidence of a real chance that the applicant would be killed, harmed or tortured if he is returned to Pakistan. Therefore, in light of its findings, the Board rejected the applicant’s appeal on 21 February 2019.

The judge’s decision

7.  On 27 February 2019, the applicant applied for leave to apply for judicial review against the decisions of the Director and the Board. As the judge rightly stated, the Director’s decision is superseded by the Board’s decision and hence the former is not susceptible to judicial review. In any event, there were no grounds in support provided for seeking relief in his application and in his supporting affirmation. The applicant simply annexed the decision of the Board and alleged that the Board did not take his case into account. As the applicant did not request an oral hearing, the judge dealt with the application on paper.

8.  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 judge concluded there is no realistic prospect of success in the intended judicial review and refused to grant leave for judicial review on 25 March 2022.

Grounds of intended appeal

9.  The applicant did not provide any grounds of appeal in his summons, other than stating that he did not receive the Court documents. In his supporting affirmation, he simply stated the Court was wrong to reject his application for judicial review. As for his written submissions, the applicant repeated the background of his claim and the dangers he would face if he is refouled to Pakistan.

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 25 March 2022. The applicant took out a summons in the court below on 28 April 2022. He was late for over two weeks[7]. This is not insubstantial and no explanation was provided by the applicant.

12.  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.

13.  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.

14.  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.

15.  The applicant’s contention that he was unable to receive Court documents is without merit. It is the responsibility of an applicant to provide a correct address to the Court at all times so that any Court document sent to his address would reach him in a timely manner. The Court of Appeal has repeatedly stated that 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).

16.  The applicant merely made bare assertions in his submissions and has failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

17.  For all 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 25 March 2022 and dismiss the summons filed on 3 October 2022.