Akbar Javed v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CAMP 313/2021

[2021] HKCA 1654

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 313 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1844 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Written Submission:  10 August 2021

Date of Judgment:  11 November 2021

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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.By a summons dated 3 August 2021, the Applicant applied to this Court for leave to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”)  dated 21 July 2021 refusing to extend time for the Applicant to appeal an earlier order of the Judge dated 14 July 2020 refusing to grant leave to apply for judicial review.

2.Having considered the Applicant’s summons and supporting affirmation dated 3 August 2021 and written submissions dated 10 August 2021, 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 (“RHC”), Cap 4A, notwithstanding the Applicant’s request for an oral hearing.

BACKGROUND

3.The Applicant is a national of Pakistan.  He came to Hong Kong on 24 October 2009 illegally and was arrested by police the next day.  On 28 October 2009, he raised a non-refoulement claim on the basis that if refouled, he would be ill-treated by his enemies who were supporters of the Pakistan Muslim League.  Details of the Applicant’s claim have been summarised by the Judge at §§4-6 of the CALL-1 Form ([2021] HKCFI 1542).

4.By a Notice of Decision dated 2 February 2015 and a Notice of Further Decision dated 10 February 2017, the Director of Immigration (“the Director”)  rejected the Applicant’s non-refoulement claim on the following grounds: risk of torture,[1] BOR 3 risk,[2] persecution risk[3], and BOR 2 risk (“the Director’s Decision” and “the Director’s Further Decision” respectively).  The Director took the view that the level of risk of harm to the Applicant from his enemies if he returned to Pakistan was low; that state protection was available to him; and internal relocation was an option open to him.

5.The Applicant appealed the Director’s Decision to the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”).  On 6 January 2017, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s First Decision”)  on the ground that the facts of his case did not fall within any of the statutory or Convention provisions for non-refoulement protection.

6.The Applicant also appealed the Director’s Further Decision to the Board.  On 17 August 2018, the Board dismissed the appeal without a hearing, and affirmed the Director’s Further Decision (“the Board’s Second Decision”).

7.On 5 September 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Second Decision.  As recorded in §15 of the CALL-1 Form, in his affirmation in support of the leave application, the Applicant did not set out the grounds in support of the application, and did not say what error the Board had committed in coming to its decision.

8.On 14 July 2020, the Judge, having considered the Board’s First and Second Decisions, refused to grant leave to the Applicant to apply for judicial review.

9.The Judge’s reasons for refusing to grant leave are set out in §§16-19 of the CALL-1 Form:

“[16] In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision [makers] and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

[17] The applicant has not challenged the Board’s [First] Decision. Nor can this Court find any valid ground to interfere with the Board’s findings.

[18] Also, there is no valid ground for this Court to interfere with the Board’s [Second] Decision.

[19] The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.”

THE JUDGE’S EXTENSION DECISION

10.Under Order 53, Rule 3(4)  of the RHC, the Applicant may appeal against the Judge’s order refusing to grant leave to apply for judicial review to the Court of Appeal within 14 days after the order.  No notice of appeal was filed by the Applicant within 14-day period.  On 31 August 2020, the Applicant filed a summons for extension of time to appeal, alleging that he did not receive the CALL-1 Form (see [2021] HKCFI 1983 at §5).

11.Citing Re Adumekwe Rowland Ejike [2019] HKCA 702, §19, the Judge held that the prospect of success of the intended appeal is important and the court would not grant an extension of time for a hopeless appeal to be pursued (§7).

12.The Judge focused on the merits of the intended appeal.  He found that the Applicant had not been able to identify in what respect the Board erred in its First and Second Decisions (§9), and considered that the Applicant was unable to show that he had any reasonable prospect of success in his intended appeal (§10).

13.Accordingly, on 21 July 2021, the Judge refused to extend time for the Applicant to appeal, and dismissed his application.

THIS APPLICATION

14.The Applicant did not set out any ground of appeal in his summons dated 3 August 2021.  In his supporting affirmation dated 3 August 2021, the Applicant stated that he opposed and disagreed with the decisions made by the authorities and the court.

15.In his written submissions dated 10 August 2021, the Applicant’s advanced (inter alia)  the following grounds of appeal: (i)  it was unfair of the Judge not to hear him in person, (ii)  no legal representation was provided in respect of the assessment of the BOR 2 risk by the Director; (iii)  there was a lack of language assistance in respect of the assessment of the BOR 2 risk; and (iv)  the authorities have been discriminatory and unfair to him.

DISCUSSION

16.The present application for leave to appeal against the judge’s order dated 21 July 2021 refusing to grant to the Applicant an extension of time to appeal against the Judge’s earlier order dated 14 July 2020 refusing to grant leave to apply for judicial review is treated as a renewed application for extension of time to appeal against the Judge’s earlier order.

17.In deciding whether to grant an extension of 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 were granted.

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

19.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.

20.There is no merit in the Applicant’s complaint that it was unfair of the Judge not to hear him in person in relation to his application for leave to apply for judicial review.  As recorded in [2] of the CALL-1 Form, the Applicant failed to attend the court’s hearing without any prior notice or explanation, notwithstanding the court’s invitation to him to attend the hearing.

21.The rest of the Applicant’s complaints were not raised by the Applicant in his application for leave to apply for judicial review before the Judge.  Generally speaking, in an intended appeal, an applicant in a non-refoulement case is not entitled to rely on grounds which were not raised before the judge at first instance.  This is because in such an appeal, the Court of Appeal would only consider whether there are errors in the reasons of the judge having regard to the grounds of review advanced by the applicant before him.

22.The Applicant has not shown any errors in the Judge’s decision refusing to grant leave to apply for judicial review, or any viable grounds of appeal in his summons, supporting affirmation, or written submissions.

23.There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

24.The application for extension of time to appeal is refused, and the Applicant’s summons of 3 August 2021 is dismissed.

The Applicant, acting in person