ABBAS SHEIKH ANSAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 58/2021

[2021] HKCA 1400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 58 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2110 OF 2018)

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Before: Hon G Lam and Chow JJA in Court

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JUDGMENT

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

INTRODUCTION

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Deputy Judge”) dated 19 August 2020 refusing to grant leave to the Applicant to apply for judicial review (“Leave Decision”).  An earlier application for extension of time to appeal was refused by the Deputy Judge on 7 January 2021 (“EOT Decision”).

2.  The Applicant’s intended judicial review was directed against the decisions of the Director of Immigration (“Director”) and the Torture Claims AppealBoard (“Board”).  By his decision dated 12 January 2018, the Director rejected the Applicant’s claim for non-refoulement protection on all applicable grounds.  The Applicant appealed against the Director’s decision to the Board.  By its decision on 26 September 2018, the Board dismissed his appeal.

3.  Having considered the Applicant’s summons and his affirmation both dated 17 February 2021, and his written submission dated 4 June 2021, we are of the view that it is appropriate to determine the renewed application for extension of time to appeal without a hearing under Order 59, rule 14A of the Rules of the High Court.

BACKGROUND

4.  The Applicant is a national of Pakistan.  He entered Hong Kong illegally in November 2014 and was arrested by the police on 28 December 2014.  Having been referred to the Immigration Department for investigation, the Applicant raised a non-refoulement claim. The basis of his claim was that, as a Shia Muslim, if he were to return to Pakistan, he would be harmed or killed by Sunni Muslims in his home district and/or by the Taliban.  The factual details of the Applicants’ claim were summarized by the Deputy Judge in [2] to [4] of the CALL-1 Form ([2020] HKCFI 2023).

DIRECTOR’S DECISION

5.  By a Notice of Decision dated 12 January 2018, the Director rejected the Applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR 2 risk[2], BOR 3 risk^[3], and persecution risk^[4].

6.  Considering that other than the Applicant’s own speculation, there was no evidence that he had indeed been threatened by the Taliban, nor was there any evidence that he had been targeted by Sunni Muslims in his home town, the Director assessed the level of risk of harm from Sunni Muslims or the Taliban upon his return as low.  Furthermore, in the absence of any official involvement, the Director considered that state or police protection would be available to the Applicant, and internal relocation was viable based on reliable and objective Country of Origin Information (“COI”).

THE BOARD’S DECISION

7.  The Applicant appealed to the Board against the Director’s decision.  He attended an oral hearing on 20 June 2018, giving evidence and answering questions put to him by the Board.  On 26 September 2018 the Board dismissed his appeal.

8.  The Board found significant inconsistencies and discrepancies in the Applicant’s account of the assault against him by Sunni Muslims and the threats from strangers claiming to be Taliban.  The Board did not accept his claim as credible or that he was a witness of truth.  The Board did not accept he would face any real or substantial risk in the foreseeable future upon his return to Pakistan from Sunni Muslims or the Taliban.  His claim for non-refoulement protection was rejected on all applicable grounds.

THE LEAVE DECISION

9.  On 3 October 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the decisions of the Director and the Board.  He put forward a number of broad and vague assertions alleging errors made by the Director and the Board.  They were rejected by the Deputy Judge in the Leave Decision for the following reasons ([2020] HKCFI 2023):-

“These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the [Board] had erred in their decisions, or in what way was state acquiescence relevant to his claim, or how did the Director or the [Board] fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to make sufficient enquiries or to apply high standard in assessing his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such I do not find any of them reasonably arguable for his intended challenge. …” (paragraph 10)

10.  The Deputy Judge further held that:-

“12. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility … and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13. Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong…

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

THE EOT DECISION

11.  On 11 September 2020, the Applicant applied by summons for extension of time to appeal against the Leave Decision, as he was out of time by 9 days.  By the EOT Decision, the Deputy Judge refused to grant the extension of time sought by the Applicant.  The Deputy Judge rejected the Applicant’s explanation that he received the Leave Decision late.

12.  The Deputy Judge went on to consider the merits of his appeal.  The Applicant’s ground of appeal was ([2021] HKCFI 4 at [6]):

“Judge of the High Court refused my leave to apply for judicial review but I do not agree with him. He could not show any good cause to refuse my leave. He only wrote the Adjudicator and Director did not make any error of law or procedure, on the law or on the process. They made error or not this is a argument subject but on the merit they did not consider at all. If Judge say I do not want to see merit then who can give justice?”

13.  The Deputy Judge held that:

“8. … it is clear … that [the Applicant] has failed to … provide any particulars of any error in the [Leave Decision], or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or affirmation, and at the hearing of his summons he merely repeated his claim that his life would still be in danger in his home country. As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal.

9.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.”

RENEWED APPLICATION

14.  By summons dated 17 February 2021, the Applicant renewed his application to this Court for extension of time to appeal against the Leave Decision.  Other than stating that he wanted to challenge the Leave Decision, the Applicant did not put forward any grounds of appeal in the summons or the supporting affirmation also of 17 February 2021.  In his written submission dated 4 June 2021, the Applicant asserted that the Taliban wanted to kill him, that the Director and the Board did not assess his problem properly, and that the process was wrong.

DISCUSSION

15.  As the Court of Appeal held in Farrukh Zaib [2020] HKCA 408 at [22] to [23], when considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.  Even if an applicant’s explanation for delay is not accepted, the court would still examine if there is merit in the intended appeal.

16.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong (Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]).  An appeal is not an occasion for regurgitating arguments advanced and rejected by the judge. 

17.  The court record showed that the Leave Decision was posted to the Applicant on the same day it was handed down ([2021] HKCFI 4 at [4]-[5]).  The Deputy Judge was entitled to reject the Applicant’s explanation for his delay.

18.  Neither the Applicant’s repetition that he would be harmed or killed by the Sunni Muslims or the Taleban in his home country, nor his general, vague and bare assertions that the Director and/or the Board did not assess his claim properly or the assessment process was wrong, can constitute any viable grounds of appeal (Farrukh Zaib [2020] HKCA 408 at [28]; Re Mizan Sikder [2019] HKCA 20 at [17]).

19.  As the Applicant has failed to identify any viable ground of appeal, extension of time to appeal is refused, and the summons of 17 February 2021 is dismissed.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of violation of the right to 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 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.