ZAMAN ADIL v. TORTURE CLAIMS APPEAL BOARD

CAMP 232 /2022

[2023] HKCA 111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 232 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 857 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.  On 9 September 2020, Deputy High Court Judge Bruno Chan 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 12 May 2022, the judge dismissed the applicant’s application for extension of time to appeal against his decision as there were no merits in the intended appeal[2].

3.  On 6 July 2022, the applicant filed the present summons with the Court of Appeal to appeal against the judge’s decision dated 12 May 2022. 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 the judge dated 9 September 2020.

4.  The applicant is a national of Pakistan. He is 34 years old. He entered Hong Kong illegally on 14 August 2015 and was subsequently arrested by the police. After he was released on bail, he surrendered to the Immigration Department and lodged a non-refoulement claim on 10 May 2016 on the basis that he would be harmed or killed by the Abbas family due to political disputes if he is returned to Pakistan.

5.  By a Notice of Decision dated 23 January 2017, the Director of Immigration rejected the applicant’s claim in respect of torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6] (“Director’s Decision”).

6.  The applicant appealed against the Director’s Decision to the Board and attended the hearing before the Board on 8 January 2018. The applicant gave evidence at the hearing. The Board found the applicant was evasive when giving answers at the hearing and, in addition, there were quite a number of suspicious allegations and inconsistences in his evidence. The Board found the applicant was not telling the truth, and even if his version of events were true, the Board was of the view that the dispute with the Abbas family was personal in nature and did not involve the Pakistani authorities. Furthermore, the Board found that internal relocation within Pakistan was not unreasonable. In light of above findings, the Board dismissed the applicant’s appeal on 23 March 2018.

The judge’s decision

7.  On 17 May 2018, the applicant filed his Form 86 for leave to apply for judicial review against the decision of the Board, stating that he was not satisfied with that decision because his enemies are very dangerous people. In his supporting affirmation, the applicant mentioned that he was unable to submit supporting documents before the Board, resulting in the dismissal of his appeal. He stated that he would obtain all the documents in support of his claim as soon as possible. He also enclosed two pages of an “out & indoor patient ticket” of a hospital relating to his brother Rustom Khan in support of his account that his brother was admitted to hospital for 15 days for serious stab wounds inflicted by a member of the Abbas family.

8.  As the applicant did not request for an oral hearing, the judge considered his application on paper.

9.  The judge emphasised that judicial review does not operate as a re-hearing of a non-refoulement claim. The Board rejected the applicant’s case essentially on its adverse finding on his credibility for the detailed reasoning set out in its decision. Importantly, it was held by both the Director and the Board that the risk of harm of the applicant is localised and it is not unreasonable to him to relocate to another part of his country. The judge held there was nothing to show the Board had committed any error of law or that there was any procedural unfairness in the process before the Director or the Board. There had been no failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim. The judge therefore concluded there was no prospect of success in the applicant’s intended application, and refused his leave application on 9 September 2020.

Grounds of appeal

10.  The applicant did not provide any grounds of appeal in his summons. In his affirmation in support, he stated that the judge was wrong in law in holding that there was no state acquiescence or involvement and that the judge failed to provide detailed reason in support of his decision.

11.  As for his written submissions, the applicant quoted from a number of cases on the requirements of high standards of fairness cases and anxious scrutiny without detailing how the quotations are relevant to his arguments.

Analysis and disposition

12.  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.

13.  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 9 September 2020. The applicant took out his summons in the court below on 4 November 2021. He was late for more than 13 months. This is very substantial delay. His explanation is that he was imprisoned and has forgotten to inform the court upon changing his address.

14.  We do not find this acceptable. 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 the address provided would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). Furthermore, as rightly found by the judge[7], the fact that the applicant was imprisoned for seven months in the latter half of 2021 is irrelevant, as the judgment of 9 September 2020 was sent to him on the day of its handing down without being returned through undelivered post.

15.  As the applicant’s delay is inexcusable, he must show a real prospect of success on the merits (Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125).

16.  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.

17.  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.

18.  In the present case, there are no reasonably arguable grounds of appeal put forth by the applicant against the judge’s decision in refusing to grant leave for him to bring judicial review. The applicant’s affirmation merely contains bare assertions. He has failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

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 9 September 2020 and dismiss the summons filed on 6 July 2022.