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CAMP 198/2021
[2022] HKCA 404
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 198 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO 1225 OF 2018)
______________________
| RE: |
AAMIR SOHAIL |
Applicant |
______________________
Before: Hon Yuen and Barma JA in Court
Date of Written Submissions: 13 July 2021
Date of Judgment: 18 March 2022
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J U D G M E N T
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Hon Yuen JA (giving the Judgment of the Court):
1. On 1 March 2021, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The deadline was therefore 15 March 2021.
2. The applicant did not lodge an appeal in time. He filed a summons in the Court of First Instance on 17 March 2021 for extension of time to appeal against the JR Decision (which was late by 2 days). The summons was dismissed by the Judge on 5 May 2021.
3. On 27 May 2021, the applicant filed his summons in CAMP 198/2021 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.
4. In compliance with the directions made by the Registrar of Civil Appeals on 29 June 2021, the applicant lodged his written submissions on 13 July 2021.
5. Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing. We are of the view that it is appropriate to determine the present application on paper without a hearing.
Background
6. The applicant is a Pakistani national. He entered Hong Kong illegally on 6 January 2009. He was arrested by police on 9 August 2009. On 11 August 2009, he raised a torture claim, later taken as a non-refoulement claim[1], on the basis that if refouled, he would be harmed or killed by Imam and Humayun because he had grudges with them over some religious disputes. The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2021] HKCFI 482).
7. By the Notice of Decision dated 18 February 2015 and Notice of Further Decision dated 31 May 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[2], the BOR 3 risk[3], the torture risk[4] and the persecution risk[5].
8. The applicant appealed the Director’s decisions to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”). The applicant attended oral hearings on 27 July, 13 September and 19 December 2017. By its decision dated 12 June 2018, the Board dismissed the appeal and confirmed the Director’s decision. For the reasons set out at [70] to [84], the Board found that the motive for Imam or Humayun to harm the applicant in the past was to extract information about his brother Babar, so as to take revenge from Babar as he had injured a relative of Imam. The applicant was therefore not personally the target of attack, and he had only got hurt when he tried to intervene in a scuffle. In any event, the level of harm suffered by the applicant was far below the threshold that would amount to torture. Further, the Board found no evidence that Imam or Humayun would be still interested in looking for the applicant after all these years as Babar has gone to Canada. It was also noteworthy that at first, the applicant had alleged that the reason why he had a fight with others was because they were teasing his sister. Further, relevant Country of origin information (“COI”) suggested there is reasonable state protection. For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds.
Application for leave to start judicial review
9. On 28 June 2018, the applicant filed a Form No. 86 to apply for leave for judicial review of the Board’s Decision. In his affirmations in support of his application, he said that he did not want to go back to his own country because Muslim thugs in Pakistan would do harm to him because he is Christian, and he did not want to be separated from his child who was born in Hong Kong.
The JR Decision
10. The applicant did not request an oral hearing and the application was disposed of on paper. After due consideration of the decisions of the Director and the Board, the Judge refused to grant leave for judicial review for the reasons set out in [12] - [16] of the JR Decision:
“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.
13. In Re: Kartini [2019] HKCA 1022, 9 September 2019,the Court of Appeal held:
“13.… … Assessment of evidence and COI materials and risk of harm, state protection … … are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”
14. His grounds in support of this application do not assist his application. He has not pointed out what error the Board had committed in reaching its decisions.
15. he Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”
Application for extension of time to appeal the JR Decision
11. As mentioned earlier, the applicant failed to file a notice of appeal within time. He filed a summons in the Court of First Instance on 17 March 2021 for an extension of time to appeal. That was dismissed by the Judge on 5 May 2021. Hence, the Summons to this court.
Discussion
12. In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). As for (1), the applicant was late by only 2 days. His delay was insignificant.
13. As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he had missed the time to apply as he only received the JR Decision on 16 March 2021. Be that as it may, as the delay was insignificant, we do not consider it necessary to examine the veracity of this explanation.
14. The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant, in his Form 86 and supporting affirmation did not put forward any proper ground for relief. The Judge had carefully reviewed the Board’s decision and found no potential ground for the intended judicial review. In his application for extension of time before the Judge, he again did not raise any proper ground of appeal against the JR Decision. It was plainly right for the Judge to conclude that there is no realistic prospect of success in the intended appeal and to refuse to extend time for an unmeritorious application.
15. In his summons and supporting affirmation before this Court, he also failed to provide any ground to reverse the JR Decision. In his written submissions, he merely repeated his claimed fear in returning to Pakistan as his enemies are looking for him. He complained that the Director and the Adjudicator did not believe his story, and the COI did not reflect his actual case. He was disappointed that the Judge also dismissed his leave application and he urged this Court to grant leave for his appeal against the JR Decision.
16. It is clear from the Board’s decision that the applicant’s claim was rejected as he failed to substantiate his claim as a matter of fact. It also found that reasonable state protection is available upon his return to Pakistan. It was perfectly open to the Board to reach its factual findings and conclusions, and the court would only intervene if there were valid public law grounds. We do not see any in this case. We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.
17. As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 27 May 2021.
(Maria Yuen)
Justice of Appeal |
(Aarif Barma )
Justice of Appeal |
The applicant, unrepresented, acting in person.
[1] The applicant raised his torture claim on 11 August 2009 under Article 3 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the process was not completed under the previous screening scheme and upon the commencement of the Unified Screening Mechanism on 3 March 2014, his claim was taken by the Director to be a non-refoulement claim.
[2] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.
[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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