AWAIZ KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 118/2023, [2023] HKCA 827

On appeal from [2022] HKCFI 1356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 118 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 526 OF 2019)

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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 12 May 2022, Deputy High Court Judge To refused to extend time for the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 26 September 2018 concerning his non‑refoulement protection claim[1].

2.  On 18 January 2023, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show any reasonable prospect of success in his intended appeal[2].

3.  On 22 March 2023, the applicant filed the present summons with the Court of Appeal to challenge the decision of the judge on 18 January 2023. 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 on 12 May 2022.

4.  The applicant is a Pakistani national. He entered Hong Kong illegally on 13 July 2015 and was arrested the following day. He lodged a non-refoulement claim on 23 July 2015 claiming that he would be killed by his Afghan business partners due to a business debt.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 17 January 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim under all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5], and persecution risk[6].

6.  Under section 37ZS of the Immigration Ordinance (Cap 115), the deadline for the applicant to file a notice of appeal against the Director’s Notice of Decision fell on 2 February 2018. However, the applicant was almost two months late when he filed the notice of appeal on 29 March 2018. Pursuant to section 37ZT(1)(a), the applicant was required to submit reasons for the late notice of appeal. He stated that he was informed by his mother it was safe to return to Pakistan, but on 24 March 2018 she told him about the attack by the Afghan business partners at his home and she warned the applicant not to return. The Board, however, was not satisfied with the applicant’s explanation owing to the lack of particulars. It found the reason provided no more than a bare assertion and was not satisfied he has established any special circumstances to allow the late filing. Therefore, the Board refused the applicant’s late filing of the notice of appeal against the Director’s Notice of Decision on 26 September 2018.

The judge’s decision

7.  On 25 February 2023, the applicant applied for leave to apply for judicial review to challenge the Board’s decision. The application was filed out of time for almost two months. The applicant did not provide any specific ground in the Form 86 except to state that the decision was “unfair”. In his supporting affirmation, he repeated his assertion he lodged his appeal late because he thought his problem in Pakistan was solved but his mother called him subsequently and told him of the attack at his home. As the applicant did not request an oral hearing, the judge dealt with the application on paper.

8.  The judge reviewed the papers extensively, even requesting the notice of appeal from the Board to ensure that the merits of the case, if any, were fully considered. Having examined the decisions of the Board and the Director, the said notice of appeal and all the relevant papers with anxious scrutiny, the judge found no error of law, procedural unfairness or failure to apply high standards of fairness in the decisions of the Director and the Board. There was no prospect of success in the applicant’s intended judicial review. The judge further held that the applicant had failed to provide any justification for the delay in applying for leave for judicial review. In the circumstances, the judge refused to grant leave to apply out of time and further refused the application for judicial review on 12 May 2022.

Grounds of appeal

9.  The applicant’s present summons and affirmation repeated essentially what was submitted in the court below, namely, that he was ignorant of court procedures and the circumstances of his late filing of the notice of appeal before the Board. His written submissions contained citation of various authorities and legal principles without any elaboration of their applicability to his situation. His main contentions in his written submissions may be summarised as follows:

(1)  High standards of fairness are required on the part of decision maker in the determination of torture claim as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.

(3)  Applying a modified Wednesbury test, the more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the Board’s decision is reasonable. For the late filing of the notice of appeal, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and any accompany documentary evidence relied on and any other relevant matters of fact within the knowledge of the Board. The Board however made its decision “on the basis of other applicant”.

(4)  He wanted to go back to Pakistan but his enemies asked for “the extra million dollar” and took advantage of their power and connection with the police. It is not easy for him to relocate in Pakistan.

Analysis and disposition

10.  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.

11.  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 12 May 2022. The applicant took out a summons in the court below on 9 August 2022. He was late for over two months. This is not insubstantial and the repeated explanation for delay was sufficiently dealt with at §6 of the judge’s decision dated 18 January 2023. The applicant did not provide any reasons that the judge’s determination was wrong. We find the delay unjustified.

12.  As the applicant’s delay is not excusable, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

13.  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.

14.  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.

15.  In the present case, the applicant failed to put forward any reasonably arguable grounds of appeal. In light of the well-founded and comprehensive reasons provided in judge’s decision, the applicant simply failed to demonstrate that the judge had made any errors of law or failed to take into account relevant matters already placed before the court or was otherwise plainly wrong. There is no valid basis to interfere with the judge’s conclusion that the intended judicial review has no prospect of success and leave to apply out of time should not be granted.

16.  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 12 May 2022 and dismiss the summons filed on 22 March 2023.