Muhammad Nabeel v. Torture Claims Appeal Board

CAMP 80/2021

[2021] HKCA 1511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 80 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 693 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Written Submission: 14 May 2021

Date of Judgment:  26 October 2021

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JUDGMENT

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

INTRODUCTION

1.By summons dated 11 March 2021, the Applicant applied to this Court for leave to appeal against the order dated 9 March 2021 of Deputy High Court Judge Bruno Chan (“Deputy Judge”) refusing to grant to the Applicant an extension of time (“EOT Decision”) to appeal against the Deputy Judge’s earlier order dated 14 September 2020 refusing to grant leave to apply for judicial review (“Leave Decision”). The intended judicial review was directed at the decision dated 26 February 2018 of the Torture Claims Appeal Board (“Board”) dismissing the Applicant’s appeal against the decision dated 22 November 2017 of the Director of Immigration (“Director”) rejecting his claim for non-refoulement protection.

2.Having considered the papers, we are of the view that it is appropriate to determine the summons dated 11 March 2021 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 entered Hong Kong illegally in early April 2017.  He was arrested on 20 April 2017 for dealing with dutiable cigarettes.  Subsequently, he was referred to the Immigration Department.  He raised a claim for non-refoulement protection on the basis that, if he were to return to Pakistan, he would be harmed or killed by his paternal uncle over a land dispute.  The factual details of the Applicant’s claim were summarized by the Deputy Judge at [2] to [4] of the Leave Decision ([2020] HKCFI 2241).

4.By a Notice of Decision dated 22 November 2017, the Director rejected the Applicant’s claim.  His decision covered torture risk^[1], BOR 2 risk[2], BOR 3 risk^[3], and persecution risk^[4]. Taking into account all relevant circumstances, the Director assessed the risk of harm from the Applicant’s paternal uncle as low.  The Director also considered that the dispute was a family dispute without any official involvement, and that state protection would be available to the Applicant.  On the basis of Country of Origin Information (“COI”), the Director further considered that internal relocation was viable.

5.The Applicant appealed the Director’s decision to the Board.  He attended a hearing before the Board on 12 February 2018, but declined to give evidence or answer any questions put by the Board.  The Board dismissed his appeal on 26 February 2018.  The Board found that, as the Applicant had declined to give evidence or answer any questions put by the Board about his claim, he had failed to show that he would be subjected to any real risk of harm from his uncle, or bring his claim within the ambit of any of the applicable grounds for non-refoulement protection.

THE LEAVE DECISION

6.On 20 April 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s decision.  His grounds for review, as set out in his supporting affirmation of 20 April 2018, were that the Board’s decision was unfair and unreasonable, but no particulars or elaboration were given.  By the Leave Decision, the Deputy Judge held that:-

“9. … in the absence of any error of law or procedural unfairness in [the] process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11. Furthermore, the fact is 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 …”

THE EOT DECISION

7.On 5 October 2020, the Applicant applied for an extension of time to appeal against the Leave Decision, as he was out of time by 7 days.  In the EOT Decision, the Deputy Judge noted that the Applicant did not provide any further details for the delay other than that he had received the Leave Decision late.  The Deputy Judge held that a delay of 7 days was not significant and went on to consider the merits of the intended appeal.

8.On the merits of the intended appeal, the Deputy Judge held that ([2021] HKCFI 444, at [5]):

“… the applicant did not put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the 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 when he was invited to do so, he merely repeated his claim that his problem still exists in his home country that he cannot go back yet. 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.”

THE PRESENT APPLICATION

9.By summons dated 11 March 2021, the Applicant sought leave from this Court to appeal against the EOT Decision.  No ground of appeal was indicated in the summons.  In his affirmation also of 11 March 2021, the Applicant stated that he was unrepresented and did not have access to any legal advice.  He also stated that it was his understanding that there was a good ground of appeal, without elaborating on any specific particulars.

10.In his written submissions dated 14 May 2021, the Applicant referred to ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 for the proposition that high standards of fairness are required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  Lastly, he made reference to the matters that the Board should consider where there has been late filing of a notice of appeal, without explaining the relevance of such reference.

DISCUSSION

11.As the Court of Appeal held in Farrukh Zaib [2020] HKCA 408 at [21], although it is technically possible to appeal against a lower court’s refusal of an application for extension of time to appeal, it is more appropriate to renew the application before this Court.  The Applicant’s summons of 11 March 2021 is therefore treated as a renewed application to this Court for extension of time to appeal against the Leave Decision.

12.It was further held in Farrukh Zaib [2020] HKCA 408 at [22] that, in 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.

13.The Deputy Judge did not consider the delay in the Applicant’s intended appeal to be significant and went on to examine its merits.  In assessing the merits of an intended appeal, the Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant 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 (Farrukh Zaib [2020] HKCA 408 at [24]). General and bare assertions without any specific particulars are not proper grounds of appeal (Farrukh Zaib [2020] HKCA 408 at [28]; Re Mizan Sikder [2019] HKCA 20 at [17]).

14.Turning to the Applicant’s affirmation of 11 March 2021, there is no absolute right to free legal representation at all stages of non-refoulement claim proceedings (Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 and FB v Director of Immigration HCAL 51/2007).  Being legally unrepresented or lacking access to legal advice, without more, is not a valid ground of appeal.  As for his understanding that there was a good ground of appeal, without any specific particulars, it is not a valid ground of appeal either.

15.Similarly, no valid ground of appeal can be found from the general propositions in the Applicant’s written submissions of 14 May 2021 regarding high standards of fairness, reasonableness of a decision, his bare assertion that the Board acted in a procedurally unfair manner without properly assessing his credibility, or his reference to late filing of a notice of appeal.

16.As the Applicant has failed to identify any proper grounds of appeal, there is no merit and no prospect of success in his intended appeal against the Leave Decision.  The application for extension of time to appeal is refused and the Applicant’s summons dated 11 March 2021 is dismissed.

The Applicant, acting in person