SHAKEEL AWAIS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 287/2023, [2023] HKCA 1107

On An Intended Appeal From [2021] HKCFI 3879 &

[2023] HKCFI 1822

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 287 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2026 OF 2018)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 17 August 2023, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge Bruno Chan given on 25 July 2023 refusing to grant the Applicant an extension of time to appeal against the order of Deputy High Court Judge P Li (“the Judge”) dated 30 December 2021 (“the Order”) refusing leave to the Applicant to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 7 September 2018, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 2 September 2015 and 20 October 2016 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Pakistan. He entered Hong Kong illegally from China on 10 March 2009, and was arrested by the police on 17 March 2009. On 19 March 2009, he made a torture claim on the basis that if he was refouled, he would be killed by the family of an unknown man (“X”) who believed the Applicant’s father had murdered X. The Applicant’s torture claim was rejected by the Director on 26 July 2013. Thereupon, the Applicant made a non-refoulement claim based on the same allegations. Details of the Applicant’s allegations have been summarised by the Judge at §§1-9 of the CALL-1 Form ([2021] HKCFI 3879).

5.  By a Notice of Decision dated 2 September 2015 and a Notice of Further Decision dated 20 October 2016, the Director rejected the Applicant’s non-refoulement claim on the remaining applicable grounds: BOR 2 risk[1], BOR 3 risk[2], and persecution risk[3] (“the Director’s Decisions”).

6.  The Applicant appealed the Director’s Decisions to the Board. On 7 September 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decisions (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §14 of the CALL-1 Form:

“The adjudicator opined that the applicant’s evidence could not support the claim. He did not accept the applicant’s story. He dismissed the claim on reasons as follows:[4]

(a) The applicant had no contact with his father since the latter left home. It was unconvincing that the applicant knew his father was shot at the transport terminus. There was no evidence that the attacker was from the ‘family’. It was pure speculation.

(b) The applicant asserted that he was attacked by relatives of the ‘family’ at his school. He had some injuries. Those injuries did not attain a minimum level of severity.

(c) The applicant did not report to the police. It was not the case that the police refused to take action against the ‘family’.

(d) The COI indicated that there was reasonable State protection in Pakistan.

(e) The applicant had left Pakistan nearly 8 years ago in 2009. There was no evidence that the ‘family’ still targeted the applicant in Pakistan. In fact, his mother and siblings were safe in Lahore.

(f) There was no substantial risk of ill-treatment. BOR 3 ground failed.

(g) The adjudicator opined that the alleged assault was not connected with any Convention reasons. There was State protection. His claim on persecution risk failed.

(h) The applicant failed to file further evidence for BOR 2 claim. The adjudicator considered the BOR 2 claim based on all existing information. There was no evidence of arbitrary deprivation of life. BOR 2 ground failed.”

7.  On 26 September 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review of the Board’s Decision was given in the Form 86. In the Applicant’s supporting affirmation filed on the same date, he stated as follows:

“I can’t go back to my country at this moment because my life is not safe in my own country. Please protect my life from danger.”

THE JUDGE’S DECISION

8.  On 30 December 2021, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[15] The applicant filed the leave application for judicial review on 26 September 2018. There was no specific complaint in his affirmation. He did not point out any error in the TCAB decision. He stressed that it was not safe in his country.

[16] The adjudicator was justified to deal with the claim on paper as the applicant’s explanation was unsatisfactory. Given the evidence, the applicant failed to establish that there was real risk of harm. I agree with the conclusion of the adjudicator. The TCAB decision was reasonable. There was no error in law or procedure either.

[17] I refuse leave for judicial review. This case is not reasonably arguable. There is no reasonable prospect of success.”

9.  On 8 June 2023, the Applicant applied by summons for an extension of time to appeal against the Order. On 25 July 2023, Deputy High Court Judge Bruno Chan refused the Applicant’s application, holding that there was no prospect of success in his intended appeal.

THIS APPLICATION

10.  By a summons taken out on 17 August 2023 in the Court of Appeal, the Applicant applied for leave to appeal out of time against the order of Deputy High Court Judge Bruno Chan of 25 July 2023. In a 6-page “Affirmation of Shakeel Awais” filed on the same date, the Applicant provided some information relating to his background, and summarised the harms that he would or might be subjected to in Pakistan if he were to be refouled. The Applicant also complained that his application for leave to apply for judicial review was dismissed without notification of the “date of hearing”. He did not provide any explanation for his delay in lodging his appeal against the Order. In passing, we mention that the Applicant also complained about his current detention by the Immigration Department. This complaint is, however, not relevant to the present application, and will not be further considered in this judgment.

11.  In his 10-page written submissions received by the Court on 28 August 2023, the Applicant provided some background information, and some further details about his non-refoulement claim.

DISCUSSION

12.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we will treat the present application as a renewed application for extension of time to appeal against the Order.

13.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

14.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

15.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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 judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

16.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

17.  The Applicant’s complaint that his leave application was dismissed without notification of the “date of hearing” has no merit. The Applicant did not request for an oral hearing of the leave application in the Form 86. The Judge was entitled, in the exercise of his discretion, to deal with the leave application on paper without a hearing pursuant to Order 53, rule 3(3) of the Rules of the High Court.

18.  The Applicant has failed to identify any error in the Judge’s decision of 30 December 2021, or raise any viable ground of appeal against the Order.

19.  There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

20.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 17 August 2023 is dismissed.