ZAMAN ADIL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULMENT CLAIMS PETITION OFFICE

CAMP 468/2022

[2023] HKCA 313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 468 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 692 OF 2019)

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JUDGMENT

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

1.  On 9 November 2022, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”)  dated 6 September 2022 (“the Order”)  refusing to grant the Applicant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 15 March 2018, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”)  dated 13 July 2016 and 6 September 2017 rejecting the Applicant’s non-refoulement claim.

3.  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

4.  The Applicant is a national of Pakistan.  He entered Hong Kong illegally on 18 March 2016, and was arrested by the police on the same date.  On 23 March 2016, he lodged a non-refoulement claim alleging that, if refouled, he would be harmed or killed by members of the Pakistani Muslim League – Noon (“PMLN”)  because he refused to join them.  Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 2753).

5.  By a Notice of Decision dated 13 July 2016 and a Notice of Further Decision dated 6 September 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decisions”).

6.  The Applicant appealed the Director’s Decisions to the Board.  On 15 March 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decisions (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §11 of the CALL-1 Form, as follows:

“The Board observed that the applicant demonstrated little knowledge about the PTI, which contradicted with his claimed involvements in the PTI [15]-[21]. It also noted that the applicant provided inconsistent accounts as to the elections [22]-[25]. The Board refused to accept the applicant’s explanations of the inconsistencies. It noted that the applicant did not mention his participations in the party rallies [26] and thus found that he was not as politically involved as he claimed [27]. Further, during the hearing, the applicant showed that he was unfamiliar with the 2013 election which he claimed to be linked to his PTI involvement and several aspects of his evidence contradicted the country of origin information [28]-[34]. As to the poster and letter submitted by the applicant in support of his involvement and the PMLN’s threats, the Board found that these did not support the applicant’s claim [35]-[41]. The Board also found that the applicant was not truthful about his disagreement with his father due to different political affiliations [43]-[44]. Meanwhile, the Board considered it doubtful that the applicant was unable to provide detailed evidence on the alleged assault [47]-[52]. As a result, the Board concluded that the applicant’s claim lacked credibility.”

7.  On 12 March 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  In the Form 86, the Applicant stated that he was not satisfied with the decisions made by the Director/the Board.  In his supporting affirmation filed on the same date, he said that his non-refoulement claim was not carefully considered, and he could not go back to his home country because his life would be in grave danger there.

THE JUDGE’S DECISION

8.  On 6 September 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[18] Those grounds in paragraph [7] above are only his bare assertions and they are not valid reasons to challenge the Board’s Decision.

[19] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

[20]  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

9.  On 27 October 2022, the Judge refused the Applicant’s application by summons dated 22 September 2022 for an extension of time to appeal against the Order ([2022] HKCFI 3111).

THIS APPLICATION

10.  By a summons taken out on 9 November 2022, the Applicant applied to the Court of Appeal for an extension of time to appeal against the Order.  In the summons, the Applicant stated the following:

“I would like to tell that my summons was dismissed by High Court without any oral hearing but still I have life threaten by ruling party members and supporters in my country. I was unable to submit my supporting documents in time. I will try my best to submit all before my next hearing to honourable judges…” [sic]

11.  In his affirmation filed on the same date, the Applicant said that his application was dismissed without any hearing, and he never got any opportunity to explain his problem.

12.  The Applicant has not lodged any written submissions in accordance with the directions given by the Registrar of Civil Appeals on 9 November 2022.

DISCUSSION

13.  In deciding whether to extend time to appeal, the 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.

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

15.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, 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’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

16.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

17.  The Applicant’s complaint that his application was dismissed without any hearing and he never got any opportunity to explain his problem has no merit.  He did not request for an oral hearing in the Form 86.  In view of the fact that no proper ground of judicial review was advanced in either the Form 86 or his supporting affirmation, the Judge was entitled, in the exercise of his discretion, to deal with the leave application on paper pursuant to Order 53, r 3(3)  of the Rules of the High Court.

18.  The Applicant has failed to point to or show any error in the Judge’s decision of 6 September 2022, and has failed to raise any viable ground of appeal against the Order.

19.  There is no prospect of success in the Applicant’s intended appeal.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

20.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 9 November 2022 is dismissed.