IQBAL MAZHAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 165/2021

[2022] HKCA 169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 165 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1344 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (handing down the Judgment of the Court):

1.  On 30 March 2021, Deputy High Court Judge K W Lung 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 May 2021, the applicant’s application for extension of time to appeal against the said decision was dismissed by the judge as the applicant failed to show any reasonable prospect of success in the intended appeal[2].

3.  On 17 May 2021, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal[3].

4.  The applicant is a national of Pakistan. He is 33 years old. He entered Hong Kong illegally in mid-2014 and surrendered to the Immigration Department on 21 November 2014. He lodged a non-refoulement claim on 18 March 2015 on the basis that he will be harmed or killed by the husband of his elder sister, Hameed, if he returns to Pakistan because of a family dispute.

5.  By a Notice of Decision dated 25 November 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[4], BOR 2 risk[5], BOR 3 risk[6] and persecution risk[7].

6.  The applicant appealed against the Director’s decision to the Board. He was represented by a Duty Lawyer at the hearing on 18 April 2018. The Board found the applicant not credible because there are significant discrepancies in his evidence concerning matters which are central to his claim. The Board did not accept the applicant’s case that Hameed has ever threatened or attacked him. The Board decided that the applicant did not make out his non-refoulement claim on any of the applicable grounds and dismissed the appeal on 21 June 2018.

The judge’s decision

7.  On 10 July 2018, the applicant filed a Form 86 and his supporting affirmation to apply for leave to bring judicial review against the decision of the Director. The Form 86 was amended to the effect that the Board is the proposed respondent and the Director is the interested party pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court. His grounds for the intended judicial review are as follows:

(1)  the Director and the Board have not considered all the facts of his case and the threats he is facing back in Pakistan; and

(2)  his enemies are powerful and the police and the state cannot protect him.

8.  DHCJ K W Lung considered the application on paper. The judge held that the applicant’s grounds are only his opinion without any evidence or particulars in support. The judge considered there is no error of law or procedural unfairness in the Board’s decision. Thus, the judge concluded that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 30 March 2021.

Grounds of appeal

9.  The applicant did not provide any grounds of appeal in his summons or affirmation.

10.  In his written submissions, he reiterated the problems he faced in Pakistan and contended that the decisions of the Director and the Board are not correct although he did not know what procedural errors are there.

Analysis and disposition

11.  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.

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 judge’s order was made on 30 March 2021. The applicant took out a summons in the court below on 14 April 2021. He was late for 1 day. He explained in his affirmation filed with the court below that he got the letter “after finish my time”, which seems to indicate that he only received the court’s decision after the expiry of the time for appeal.

13.  The delay in the present case is very short. However, even if the court is minded to accept the applicant’s explanation for the delay, the court would still assess whether the applicant can show reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[8].

14.  In assessing the merit 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, the applicant has not put forward any grounds against the judge’s decision in refusing to grant leave. He failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We therefore refuse to exercise our discretion to extend time to appeal against the judge’s decision of 30 March 2021 and dismiss the application for extension of time filed on 17 May 2021.