MEHMOOD FAISAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 469 /2021

[2022] HKCA 441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 469 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2305 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 19 January 2021, Deputy High Court Judge C P Pang 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 24 August 2021, the applicant’s application for extension of time to appeal against the said decision was dismissed by Deputy High Court Bruno Chan as there is no reasonable prospect of success in the intended appeal^[2].

3.  On 19 October 2021, the applicant filed the present summons with the Court of Appeal seeking to extend time for appeal against the decision refusing leave to apply for judicial review.

4.  This summons should be treated as a renewed application for leave to appeal out of time against the decision dated 19 January 2021 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

5.  The applicant is a national of Pakistan.  He is 37 years old.  He entered Hong Kong on 28 February 2006 as a visitor and overstayed. He was arrested by the police on 5 August 2007 and raised a non-refoulement claim on 18 August 2008.  He claims that if refouled, he would be harmed or even killed by a man named Irfan (“Irfan”) who believed that his brother Imran was killed by the applicant’s cousin Naveed (“Naveed”) in 2005. The applicant claims that he had been kidnapped by the people of Irfan and threatened that if he did not inform them of Naveed’s whereabouts, Irfan would kill him.  Irfan had also accused the applicant of being involved in the killing of his brother.  The applicant claims that he had been tied up and assaulted by Irfan’s people before he was released.

The Director’s decisions

6.  By a Notice of Decision dated 28 August 2014, the Director rejected the applicant’s claim on torture risk^[3], BOR 3 risk^[4], and persecution risk^[5].

7.  The applicant appealed against the Director’s decision to the Board.  An oral hearing was conducted on 5 February 2015.  The Board found that there were a lot of contradictory and inconsistent statements made by the applicant which rendered his evidence unreliable.  The Board also found there is reasonable state protection for the applicant upon his return to Pakistan, and that internal relocation is a viable option.  The Board dismissed the appeal on 26 August 2015.

8.  By a Further Notice of Decision dated 10 November 2016, the Director rejected the applicant’s claim on BOR 2 risk^[6]. The applicant appealed, but was late by 2 months and 21 days in filing the Notice of Petition against the Further Notice of Decision.  The Board took the view the applicant’s explanation that he had lost the Notice of Decision and Appeal Form was just a bare statement without details.  Since there was inordinate delay with no cogent reason or reason of special circumstances which would render it unjust to disallow the late filing of the Notice of Petition, the Board refused the applicant’s late filing on 7 May 2018.

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 23 October 2018 for leave to apply for judicial review against the decisions of the Director and the Board.  In his affirmation he said he was not happy or comfortable with the decisions of the Board and claimed that his life would be in danger if he was to be refouled.

The judge’s decision

10.  DHCJ Pang was of the view that the applicant has no prospect of success at all.  He found that even if one gave the alleged account of events the most favourable interpretation, the past ill treatment or experience put forward by the applicant was of low intensity and frequency demonstrating at most only a remote and unreal risk of future harm.

11.  The judge found no error of law, irrational findings or procedural unfairness in the decisions of the Board, and no failure to apply high standards of fairness in the decisions.  Given that there is no prospect of success in the applicant’s intended application for judicial review, and in the absence of good reason for extending the period to make the application, extension of time to apply was refused, and leave to apply for judicial review was refused on 19 January 2021.

Grounds of intended appeal

12.  The applicant did not provide any grounds of appeal in his affirmation for this application.  His written submissions claimed he did not get the High Court judgment, so he could not appeal to the Court of Appeal, with no further elaboration or explanation.

Analysis and disposition

13.  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.

14.  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 19 January 2021.  The applicant took out a summons at the court below on 2 March 2021.  He was late by a month.  The delay was not insubstantial.

15.  The applicant claimed in his affirmation filed in the court below that he did not find the judgment in his mailbox, but in his summons filed on 2 March 2021 he stated that he received the judgment on 29 February 2021.  No further explanation was given.

16.  Leaving aside the absence of proper explanation for the delay, the court would still assess whether the applicant can show reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application (Re Gurung Min Bahadur [2018] HKCA 226 at §10).

17.  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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review (Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

18.  In the present application, the applicant has not put forward any ground to reverse the decision of DHCJ Pang on 19 January 2021.  He failed to show that he has any prospect of success in his intended appeal.  We refuse to grant extension of time to appeal against the judge’s decision and dismiss the summons filed on 19 October 2021.