ANWAR NOMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 552/2022, [2023] HKCA 713

On appeal from [2021] HKCFI 3408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 552 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 260 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):

Background

1.  On 25 November 2021, Deputy High Court Judge K W Lung dismissed 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 claim upon the applicant’s request to withdraw his case[1].

2.  On 4 November 2022, the applicant filed a summons stating that he does not want to go back to his country because his life is not safe there and he got married in Hong Kong. The judge treated this summons as an application for leave to appeal against the said decision out of time. The summons was dismissed by the judge on 15 December 2022[2].

3.  On 29 December 2022, the applicant filed the present summons seeking leave to appeal against the decision dated 15 December 2022. This application should be treated as a renewed application for extension of time to appeal against the judge’s decision of 25 November 2021 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.  The applicant is a national of Pakistan. He entered Hong Kong on 3 November 2014 as a visitor and subsequently overstayed. He surrendered to the Immigration Department on 14 November 2014. On 21 January 2015, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his business partner who suspected that he has embezzled the company’s money.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 29 March 2018, the Director of Immigration (“the Director”) rejected the applicant’s 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. He attended the hearing before the Board on 16 October 2018. Because of the significant inconsistencies and vagueness in his evidence, the Board considered the applicant’s claims regarding his business partnership not credible. The Board did not accept that the applicant would face any form of harm upon his return to his home country and dismissed the appeal on 18 January 2019.

The intended judicial review

7.  On 28 January 2019, the applicant filed a Form 86 and an affirmation in HCAL 260/2019 to seek leave to bring judicial review against the Board’s decision. He did not put forward any grounds for his intended challenge.

8.  On 19 October 2021, the applicant filed an affirmation stating that he would like to formally withdraw his case as the conflict in Pakistan has been resolved and he hopes to go back to Pakistan.

The judge’s decision

9.  DHCJ K W Lung dealt with the application on paper and dismissed the leave application on 25 November 2021 as the applicant has no problem in his country.

Grounds of intended appeal

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

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker; and

(2)  the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

11.  In considering whether to extend time to appeal 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.

12.  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 25 November 2021 and the applicant was late by more than 9 months when he took out the summons at the court below on 4 November 2022, exclusive of the court’s summer vacation in August. He explained that he did not receive the judgment from the court by post.

13.  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]). The court had already sent a letter to the applicant on 8 November 2021 informing him that the judgment would be ready for handing down as soon as possible or in late November 2021. The judge’s decision was then sent to the applicant’s address by post on 25 November 2021. Under these circumstances, the applicant’s explanation for the substantial delay and inaction is not justifiable.

14.  Where a delay is inexcusable, 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).

15.  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.

16.  The applicant’s grounds in his written submissions were not raised in his previous application at the court below. These new grounds should not be entertained as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[7].

17.  In any event, the applicant’s grounds are just bare assertions without evidence in support and contrary to the facts. In particular, the Board has given detailed analysis in assessing the applicant’s credibility. The applicant failed to adduce any evidence to refute the Board’s findings. Furthermore, he failed to demonstrate that the judge was wrong in dismissing his leave application upon his own request.

18.  For the above reasons, there is no prospect of success, let alone real prospect of success, in the intended appeal. We refuse to exercise our discretion to extend time to appeal against the judge’s decision of 25 November 2021. The summons filed on 29 December 2022 is dismissed.