MAQSOOD PAUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 348/2021

[2022] HKCA 548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 348 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1504 OF 2018)

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J U D G M E N T

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

1.  On 20 August 2021, the Applicant took out a summons with a supporting affirmation seeking to set aside an order made by Deputy High Court Judge K W Lung (“the Judge”)  on 9 August 2021, and an extension of time to file a notice of appeal.

2.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

3.  The Applicant is a national of Pakistan.  He had previously overstayed in Hong Kong and was refouled to Pakistan on 19 February 2005. On 10 September 2011, he sought to enter Hong Kong but was refused permission to land and put under investigation.  During the investigation, he lodged a torture claim through his legal representative, alleging that if he was refouled back to Pakistan, he would be harmed or killed by the Muslims there as he was a Christian.  After his torture claim had been rejected, he sought non-refoulement protection on the same basis.  Details of the Applicant’s claim have been summarised by the Judge at §§4-5 of the CALL-1 Form ([2020] HKCFI 1019).

4.  Having previously rejected the Applicant’s claim based on the torture risk[1], by a Notice of Decision dated 17 June 2016 and Notice of Further Decision dated 6 September 2017, the Director of Immigration (“the Director”)  rejected the Applicant’s non-refoulement claim on the following grounds: BOR 2 risk[2], BOR 3 risk[3], persecution risk[4], and risk to right to freedom of thought, conscience and religion under Article 15 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“the Director’s Decisions”).

5.  The Applicant appealed the Director’s Decisions to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).  On 27 April 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s Decisions (“the Board’s Decision”).  The Board found the Applicant’s testimony to be “vague, garbled, incoherent, inconsistent with what he previously said, inconsistent with documents he had himself presented and … manifestly lacking in credibility” (see §48 of the Board’s Decision).  Having considered the evidence and the Applicant’s credibility, the Board accepted that the Applicant was a Christian but found that he would not be subjected to any risk of persecution because an ordinary Christian would not be subjected to such risk.  The Board also found that internal relocation was an option open to the Applicant (see §§71-73 of the Board’s Decision).  Therefore, the Board concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

JUDGE’S DECISION

6.  On 30 July 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Director’s Decisions and the Board’s Decision.  Two grounds of judicial review were raised:

(1)  the Adjudicator had not carried out sufficient research and proper inquiry into Country of Origin Information; and

(2)  the Director had adopted a very uniformed approach for all non-refoulement claims.

7.  On 4 June 2020, the Judge refused to grant leave to the Applicant to apply for judicial review.  At §§14-20 of Form CALL-1, the Judge stated as follows:

“The Director’s Decisions

14. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board was created by the legislature, with wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

15. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

16. For the reasons above, I dismiss the applicant’s application for leave to apply for judicial review of the Director’s Decisions.

The Board’s Decision

17. The applicant appeared before me. He confirmed that he considered that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator.

18. Grounds (1)  and (2)  are his personal opinion without any evidence to support. They fail.

19. It is clear that the Adjudicator had found that there was no factual basis in support of the applicant’s claim.

20.  The applicant fails to show that he had any reasonable chance of success in his proposed judicial review.”

8.  On 9 August 2021, the Judge dismissed the Applicant’s summons taken out on 17 August 2020 for extension of time to appeal. 

THIS APPLICATION

9.  By a summons taken out on 20 August 2021, the Applicant applied to this Court for an order to set aside the order made by the Judge on 9 August 2021, and an extension of time to file a notice of appeal.  In his 7-page supporting affirmation filed on the same date, the Applicant alleged that he did not understand the judgment as he was not given a translation of it, and complained that the Judge made a biased and erroneous judgment without providing any particulars or details in support.

10.  In his written submissions dated 3 September 2021, the Applicant repeated the gist of the complaints made in his affirmation.  He also stated that he was helpless without legal representation, and a decision based purely on credibility was procedurally unfair.

DISCUSSION

11.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.

12.  In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

13.  The prospect of success of an intended appeal is important.  The court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

15.  The delay of 60 days in the present case is substantial, and the Applicant has not provided any good explanation for his delay.

16.  As regards the merits of the Applicant’s intended appeal, the Applicant has failed to identify any specific error in the judgment, or raised any viable ground of appeal against the judgment.

17.  In relation to the Applicant’s complaint that he did not understand the judgment, it is well established that high standards of fairness do not require that interpretation service be made available free-of-charge at any time as a non-refoulement claimant may desire: Re Zaman Muhammad [2018] HKCA 486, at §13.  We observe that the Applicant’s summons, affirmation and submissions are all written in English of a reasonable standard.  This indicates that the Applicant either can understand and write English, or has access to language assistance.  At paragraph 15 of his affirmation, the Applicant states that he found someone to help him understand and prepare his summons, and presumably his affirmations and submissions as well.  Having considered the Applicants’ summons, affirmation and written submissions, we are not satisfied that there is any potential ground of appeal against the judgment which the Applicant could have, but has not, raised due to his alleged inability to understand the judgment.

18.  There is also no merit in the Applicant’s complaint that he had no legal representation.  In so far as this complaint relates to his appeal to the Board, he did not raise this ground in his application for leave to apply for judicial review, and should not be permitted to raise this new ground for the first time in the Court of Appeal.  In so far as this complaint relates to his application for leave to apply for judicial review or the present appeal, there is no legal basis for any contention that he was or is entitled to legal representation at either stage of the proceedings.

19.  The Applicant also complains that the Board’s Decision was based purely on an adverse finding of his credibility.  This is incorrect.  The Board found, amongst other matters, that the Applicant was not at risk of persecution, but even if there was any such risk, the Applicant would have the option of internal relocation.

20.  Overall, we consider that there is no reasonable, or real, prospect of success in the Applicant’s intended appeal.

DISPOSITION

21.  The application for extension of time to appeal is refused, and the Applicant’s summons of 20 August 2021 is dismissed.