Shiyad Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 144/2021

[2021] HKCA 1840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 144 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 600 OF 2017)

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Before: Hon Kwan VP and G Lam JA in Court

Date of Written Submission: 18 June 2021

Date of Judgment: 10 December 2021

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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 2 August 2018, Deputy High Court Judge Josiah Lam 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 20 September 2018, the applicant’s application for extension of time to appeal against the said decision was dismissed by the judge as there is no reasonable prospect of success in the intended appeal^[2].

3.On 5 May 2021, the applicant filed the present summons with the Court of Appeal seeking to set aside an order dated “20 December 2018” and for leave to file a Notice of Appeal.  He stated in his supporting affirmation of 5 May 2021 that he is seeking to set aside the order given on “20 September 2021”.  No order was made in these proceedings (HCAL 600 of 2017) on 20 December 2018 or 20 September 2021.  We believe that the applicant intended to refer to the order dated 20 September 2018 refusing to grant extension of time for him to lodge his appeal against the order dated 2 August 2018.  We propose to treat this application as a renewed application for leave to appeal out of time against the decision dated 2 August 2018, see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8.

4.The applicant is a national of Pakistan.  He is 29 years old.  He entered Hong Kong illegally on 16 December 2011.  He was arrested by the police on 27 June 2012 and lodged a non-refoulement claim on 1 July 2012.  His claim was made on the basis that he will be harmed or killed by members of the Taliban if he returns to Pakistan.

5.By a Notice of Decision dated 8 October 2015, the Director rejected the applicant’s claim on torture risk^[3], BOR 3 risk^[4] and persecution risk^[5].

6.By a Notice of Further Decision dated 19 December 2016, the Director rejected the applicant’s claim on BOR 2 risk^[6].

7.The applicant appealed against the Director’s decisions to the Board. The applicant attended the hearing before the Board on 13 February 2017.  The Board observed that the applicant had never personally encountered the Taliban and had not sustained any injury.  The Board held that the alleged acts of the Taliban do not amount to torture and there is no evidence to show that they were acting in an official capacity or on behalf of the state of Pakistan.  The Board did not accept that the applicant would face a genuine and substantial risk of being subjected to ill-treatment and considered that the applicant’s fear does not fall within the definition of persecution.  There is also no information provided by the applicant to support a claim under BOR 2 risk.  In addition, the Board considered that the availability of state protection further lowers or negates the perceived risk.  Therefore, the Board dismissed the appeal on 1 September 2017.

The judge’s decision

8.On 7 September 2017, the applicant applied for leave to apply for judicial review against the decision of the Board.  His grounds for his intended judicial review may be summarized as follows:

(1)  the adjudicator failed to carry out sufficient research and inquiry of the conditions of Pakistan;

(2)  the adjudicator failed to consider the relevant and updated country of origin information.  He also placed weight on irrelevant or outdated information, relied on information not officially recognised or was simply hearsay, and failed to consider facts and inferences favourable to the applicant;

(3)  the adjudicator failed to call for psychological and psychiatric reports;

(4)  the adjudicator failed to evaluate and make finding of facts as to whether there existed in Pakistan a consistent pattern of gross, flagrant or mass violation of human rights;

(5)  the adjudicator failed to properly consider the issues of state protection and state acquiescence;

(6)  the adjudicator applied the wrong standard of proof and rendered an unreasonable decision;

(7)  the adjudicator failed to take into account he was a self-represented claimant.  The hearing bundle was only served on the applicant a few days before the appeal hearing so he did not have enough time to obtain language assistance to prepare for the appeal;

(8)  the failures of the assigned duty lawyer resulted in a lack of and/or insufficient legal representation; and

(9)  the Director failed to screen his claim with respect to BOR 2 risk.

9.The applicant attended the hearing before DHCJ Josiah Lam on 12 June 2018.  The judge found no realistic prospects of success in the intended judicial review and rejected the leave application on 2 August 2018 for the following reasons:

(1)  The appeal bundle consisted mostly of documents that had been seen or submitted by the applicant and he had a friend who could assist him to deal with English documents.  The applicant had exaggerated his problem of getting language assistance and handling documents;

(2)  An applicant of a non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings and the applicant had already received legal representation up to the Director’s decision on 8 October 2015;

(3)  The adjudicator had proper basis for his findings and decisions. He made no errors of law and there was no procedural unfairness.  High standards of fairness had been achieved.  The applicant had been given reasonable and sufficient opportunities to state and elaborate on his case;

(4)  The applicant had not provided additional facts in respect of BOR 2 risk to the Director and the Director was entitled to consider the applicant’s claim on BOR 2 risk without holding further interview.  The Director made no errors of law and there was no procedural unfairness.  The Director had also achieved high standards of fairness.

Grounds of appeal

10.The applicant stated his grounds of appeal in his affirmation and written submissions and they may be summarized as follows:

(1)  The judge erred by not taking all relevant circumstances into account;

(2)  The judge made a biased and erroneous judgment;

(3)  The court did not provide any language assistance to ensure that the applicant understands the content of the judgments.  The applicant was deprived of the opportunity to understand the judgments and to make proper grounds of appeal;

(4)  The applicant was unrepresented so he does not understand what he should say to the court about his case and failed to elaborate on his grounds in his affirmation.  The judge did not notice that the applicant was not legally represented when he lodged the appeal to the Board.

Analysis

11.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.

12.Pursuant to Order 59, rule 14(3) of the Rules of the High Court (Cap 4A), where an ex parte application has been refused by the court below, an application for similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal.  The applicant’s application for extension of time to appeal was refused by the court below on 20 September 2018.  He was late for more than 31 months when he made the present application to the Court of Appeal on 5 May 2021.  The applicant did not provide any explanation for his substantial delay.

13.As the applicant’s delay is inexcusable, he must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14.In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.In the present case, the applicant does not have any reasonably arguable grounds to challenge the decision of the judge.  His contentions that the judge failed to take into account all relevant circumstances and made a biased and erroneous judgment are without basis.  The judge has duly considered the applicant’s complaints against the Director and the Board as well as his complaints pertaining to the lack of language and legal assistance.  The judge has also provided detailed explanation for rejecting the leave application in his judgment dated 2 August 2018. 

17.The applicant has also admitted in his affirmation that he understands English, although he submitted that he was not able to understand “the complicated legal decision”.  The applicant has set out his grounds in English in his affirmation and written submissions.  This shows that either the applicant is conversant with the English language or he has access to language assistance of his own if needed.  His contention that he was deprived of the opportunity to understand the judgments and to make proper grounds of appeal is untenable.

18.For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We therefore dismiss the summons for leave to appeal out of time filed on 5 May 2021.

The Applicant, acting in person

[1] [2018] HKCFI 1774

[2] [2018] HKCFI 2089

[3] As defined in Part VIIC of the Immigration Ordinance (Cap115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).