MOHAMMAD WAQAS ALIAS WAJID ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 296/2020

[2021] HKCA 754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 296 OF 2020

(ON APPEAL FROM HCAL NO 1826 OF 2018)

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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.  This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Cheung JA and Au JA) handed down on 20 January 2021 ([2021] HKCA 61) rejecting the appeal against the decision of Deputy High Court Judge K W Lung dismissing his application for leave to apply for judicial review concerning his non-refoulement claim^[1].

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar directed on 21 April 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 4 May 2021.  Having considered the Notice of Motion and the written submissions, it is appropriate for the Court of Appeal to determine this application on paper.

3.  The applicant is a national of Pakistan.  He had been previously sentenced to imprisonment in Hong Kong and repatriated to Pakistan for two times, under different identities.  When he came to Hong Kong for the third time, he again was convicted of some offences and sentenced to imprisonment.  After serving his sentence, he lodged a torture claim which was subsequently withdrawn.  He claimed that he had solved his problem in Pakistan and departed Hong Kong on 8 March 2011.

4.  The applicant came to Hong Kong for the fourth time in 2016 and surrendered to the Immigration Department on 24 June 2016 under the identity of “Wajid Ali”.  He lodged a non-refoulement claim on 3 August 2016.  He claimed that if he is to be returned to Pakistan he would be harmed or killed by Chaudhry Abid Raza (“Chaudhry”) who was from the Pakistan Muslim League (N) (“PMLN”) and a member of the National Assembly in Gujrat.

5.  His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 3 April 2017.  His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board (“the Board”) on 11 June 2018.

6.  He filed a Form 86 on 4 September 2018 to seek leave to apply for judicial review against the decision of the Board.  His application was refused by DHCJ K W Lung on 10 July 2020.

7.  On 24 July 2020, the applicant filed a Notice of Appeal against the decision of DHCJ K W Lung.  The Court of Appeal dealt with the appeal on paper as the applicant consented to the disposal of his appeal on paper without an oral hearing.  His appeal was dismissed by the Court of Appeal on 20 January 2021.  He filed a Notice of Motion out of time on 20 April 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

8.  The applicant stated the following grounds of appeal in the Notice of Motion:

(1)  The Board overlooked certain facts of substance which, if considered, would affect the result of the case;

(2)  The Board sustained irregular procedures and through the invocation of summary methods including rules of appeal, tolerated a violation of due process;

(3)  The agency when arriving at its findings went beyond the issues of the case; and

(4)  Where the rights of the party were prejudiced because of the administrative findings, the conclusions and decisions of the Board were in violation of the international laws.

9.  His submissions in writing may be summarized as follows:

(1)  The judge’s finding is “belied by the evidence on record”;

(2)  The Board misapprehended and/or overlooked certain facts of substance and of value.  The applicant has proven by substantial evidence that people seeking his death possess power in Pakistan nationwide.  Thus, to compel the applicant to seek internal relocation is to put him directly to the flames of death.  The applicant would not have been forced to leave his homeland if the risk he is facing is indeed low and not serious;

(3)  The Board’s findings are contrary to the admissions of the applicant and/or the evidence presented by him.  Evidence on the record shows that the threats are serious and the applicant already experienced being kidnapped and tortured by the people he feared;

(4)  The applicant’s rights under international laws were violated.  He was tortured by the PMLN.  The prohibition of torture is part of the customary international law.  The prohibition of arbitrary deprivation of life, which includes an inherent obligation not to send any person to a country where there is a real risk that he may be exposed to such treatment, also forms part of the customary international law.  The prohibition of refoulement to a risk of cruel, inhuman or degrading treatment or punishment is in the process of becoming customary international law;

(5)  The applicant’s constitutional rights against basic due process were likewise violated.  The Board failed to conduct a fair hearing.  Otherwise, the Board would not have missed the overwhelming proof that the applicant’s life is critically threatened.  The total ignorance of the glaring substance of the applicant’s proof by the Board is tantamount to denial of a fair hearing.

Analysis and disposition

10.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  The Court of Appeal may extend the time for making the application under section 24(5).

11.  Good grounds have to be shown by the applicant for the court to grant him an extension of time.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

12.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

13.  The applicant was late for more than two months in filing the Notice of Motion.  He explained in his affirmation that he had applied for legal aid and had been told to wait for the legal aid decision.  He has produced a copy of the letter issued by the Director of Legal Aid showing that his application for legal aid was rejected on 12 April 2021.

14.  Even if the Court of Appeal is minded to excuse the applicant’s delay in filing the Notice of Motion, this application does not meet the requirement for granting leave to appeal to the Court of Final Appeal. The applicant’s grounds of appeal are unmeritorious.  In particular, his complaints against the Board’s decision are untenable.  He has not produced any reliable evidence to refute the Board’s findings, while his evidence is based on his own assertions in which a number of significant inconsistencies were identified by the Board.  The applicant failed to provide justifiable explanations for the inconsistencies.  The Board’s finding that the applicant invented the claimed adverse interest from Chaudhry is well founded.  For instance, it is inherently improbable that the applicant could not even state the full name of the political party in which he claimed he was involved.  As the core issues in the applicant’s claim cannot be substantiated, his grounds and submissions pertaining to his rights under the relevant laws would not assist his present application.

15.  Moreover, the applicant has not demonstrated that the Court of Appeal was wrong in dismissing his appeal.  He has also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

16.  For the above reasons, we dismiss the Notice of Motion filed on 20 April 2021 and decline to grant leave to appeal to the Court of Final Appeal.