MAHMOOD ZAFAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 47/2023, [2023] HKCA 652

On appeal from [2022] HKCFI 491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 47 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2169 OF 2018)

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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 28 February 2022, Deputy High Court Judge K W Lung (“the Judge”) 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 19 September 2022, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal had ended on 14 March 2022. On 21 October 2022, the Judge dismissed the applicant’s summons for extension of time to appeal against the said decision as the applicant was unable to show any realistic prospect of success in the intended appeal[2].

3.  On 6 February 2023, the applicant filed the present summons in the Court of Appeal as a renewed application for extension of time to appeal.

4.  The applicant is a Pakistan national. He entered Hong Kong illegally on 25 May 2014 and was arrested on 14 January 2015. On 16 January 2015, he lodged a non-refoulement claim. He claimed that: (1) he would be harmed or killed by his relatives due to a land dispute; and (2) his relatives, who belonged to Pakistan People’s Party, would harm him due to his membership in Muslim Conference Party. Details of his claim are set out in §8 of the Director’s Decision (described below) and §9 of the Board’s Decision (described below) and are summarised in §5 of the Judge’s CALL-1 Form dated 28 February 2022 ([2022] HKCFI 491).

The Director’s Decision

5.  By a Notice of Decision dated 29 September 2017, the Director rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.  In the decision, the Director refused the applicant’s claim for the reason that his claim was not substantiated. The Director assessed that the level of risk of him being harmed or killed upon refoulement was low. Besides, state protection and internal relocation options were available to him.

The Board’s Decision

7.  On 12 October 2017, the applicant appealed against the Director’s decision to the Board. He attended an oral hearing before the Board on 25 July 2018. On 10 September 2018, the Board dismissed the appeal and affirmed the Director’s decision.

8.  Despite that the Board accepted the applicant’s evidence in relation to his inheritance of the disputed land, the Board found that the applicant’s alleged threats from his relatives were doubtful and that his evidence was inconsistent and implausible. As summarised by the Judge in §9 of the CALL-1 Form dated 28 February 2022 ([2022] HKCFI 491), the Board found that the applicant provided different versions on the forms of the attack and inconsistent accounts as to the time when the police got involved. The Board also doubted the applicant’s construction on the land and disbelieved the applicant’s claim that his relatives tried to occupy the land which increased in value after a road was constructed. According to the evidence, the road was constructed some 11 years ago, long before the applicant’s claim. Further, the Board found that the applicant’s account as to the circumstances surrounding the shooting incident was inconsistent. The documents provided by the applicant also failed to support his claim. In conclusion, the Board rejected the applicant’s claim on all applicable grounds and dismissed his appeal.

The judge’s decision

9.  On 9 October 2018, the applicant filed a Form 86 and an affirmation for leave to apply for judicial review against the decision of the Board.

10.  In his Form 86 and affirmation, the applicant stated that he was not satisfied with the decision because he had submitted the documents, but they were disregarded. He further stated that he had big threat in his country and that his life would be in danger if he returned.

11.  By the CALL-1 Form dated 28 February 2022 ([2022] HKCFI 491), the Judge held that the applicant did not have any valid ground to challenge the Board’s decision (§15). There was no error of law or procedural unfairness in the Board’s decision, and the Board’s findings were not in any respect open to challenge as Wednesbury unreasonable or irrational (§16). There was also no evidence that shows that the applicant has any realistic prospect of success in the intended judicial review (§17). For these reasons, the Judge refused to grant leave for the applicant to apply for his intended judicial review and dismissed his application (§18).

Grounds of intended appeal

12.  The applicant did not provide any grounds of appeal in his summons or his supporting affirmation both of 6 February 2023 and merely stated that he did not agree with the decision of the Court and that he failed to appeal as he did not get the letter of the Court on time.

13.  Pursuant to the directions made by the Registrar of Civil Appeals on 6 February 2023, the applicant lodged his written submissions on 20 February 2023. In those submissions, the applicant reiterated that he would be in danger if he is returned to Pakistan and stated that he was not satisfied with the Board’s Decision. He further repeated that he failed to appeal as he did not get the Court’s decision.

Analysis and disposition

14.  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.

15.  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 order was made on 28 February 2022. The applicant took out a summons for extension of time to appeal against that order at the court below on 19 September 2022. He was late for about 6 months. The delay is substantial.

16.  In his summons and supporting affirmation both dated 6 February 2023 and in his written submissions dated 20 February 2023, the applicant merely asserted that he did not receive any letter/decision from the court without providing any particulars or supporting evidence. Such bare assertion cannot justify his delay.

17.  As the delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumati Ferry Co Ltd [2001] 1 HKC 125.

18.  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.

19.  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.

20.  In the present case, the applicant has failed to put forward any reasonably arguable grounds of appeal. The Judge at the court below provided well-founded reasons for his decision. The applicant 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.

21.  Having considered the materials before us, we share the Judge’s view that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

22.  For the above reasons, there is no prospect of success in the applicant’s intended appeal, let alone any real prospect of success. We refuse to exercise our discretion to grant extension of time to appeal against the Judge’s decision of 28 February 2022 and dismiss the summons filed on 6 February 2023.