Re Ahmed Masood

CAMP 262/2021

[2022] HKCA 212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 262 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2413 OF 2018)

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Before :  Hon Cheung and Yuen JJA in Court

Date of Decision :  10 February 2022

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)  Renewed application for extension of time to appeal

1.On 31 October 2018, the applicant issued his application for leave for judicial review by Form 86. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 31 August 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 21 December 2016 rejecting his non-refoulement claim. The application was brought within time.

2.In his decision of 22 July 2020, Deputy High Court Judge K W Lung refused to grant leave to the applicant for judicial review (‘First Decision of the Judge’).

3.Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision. The applicant issued an application on 26 August 2020 before the Judge requesting an extension of time to appeal. The Judge on 19 July 2021 rejected the applicant’s application (‘Second Decision of the Judge’).

4.Under Order 59, rule 14(3) of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal. On 20 July 2021, the applicant filed the present summons within time to make a further application to this Court for extension of time to appeal.

5.Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing. Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

6.The applicant is a Pakistan national. He last entered Hong Kong in November 2015 but overstayed. In July 2016, the applicant raised his non-refoulement claim by his legal representatives based on his fear that he would be harmed or killed by people from the Taliban because the applicant refused to give in to their extortion or refused to join them to fight against the government of Pakistan.

3)  The Director’s Decision

7.The Director decided against the applicant’s non-refoulement claim on 21 December 2016. The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

8.The applicant appealed against the Director’s Decision to the Board. Oral hearings were conducted on 16 April 2018 and 7 June 2018. The Board dismissed the applicant’s appeal on 31 August 2018. The Board held that there were too many contradictory and inconsistent statements by the applicant which made the applicant’s case unreliable, and in particular the applicant came to Hong Kong to earn money and not for non-refoulement protection. The applicant had never been inflicted with severe pain or suffering falling under the definition of torture under the Immigration Ordinance. The facts of the applicant’s case do not involve genocide. Minimum level of severity was not attained as the applicant did not suffer any serious physical or mental ill-treatment. The applicant had personal disputes with his enemies and there was no persecution as the purpose of the dispute had no correlation with any of the Convention reasons of race, religion or nationality etc. Internal relocation was possible.

5)  Decisions of the Judge

9.In his decision dated 22 July 2020, the Judge held that the applicant’s affirmation in support did not provide any reason to show where the Board had erred.

10.The Judge stated in his Second Decision that the applicant’s claims were rejected by the Board based on his inconsistent accounts and his failure to establish any of the applicable grounds against non-refoulement. There was no reasonable prospect of success in the intended appeal.

6)  Legal principles

11.We will repeat the approach of this Court in dealing with cases of this nature :

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and 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 are errors of law or procedural unfairness or irrationality in their decisions.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge. In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant 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.

(3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant. If no viable ground is put forward to reverse the Judge, the appeal should be dismissed. It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

7)  Analysis

(1)  Summons, affirmation and written submissions

12.By reason of Order 1, rule 4 and Order 64, rule 1 of the Rules of the High Court, the month of August is the summer vacation. Section 31 of the High Court Ordinance (Cap. 4) specifies that no days in the month of August shall be reckoned in the computation of time for the doing of any act for any period not exceeding one month. This includes the 14-day to appeal requirement under Order 53, rule 3(4). Accordingly, 14 days from 22 July 2020 and not counting any days in August 2020 should be 5 September 2020. Further, 5 September 2020 is a Saturday, which is a specified day under Order 3, rule 4 of the Rules of the High Court. Therefore, the last day when the applicant may make an application to appeal the First Decision of the Judge would be 7 September 2020. The applicant was not late when he lodged his application for extension of time on 26 August 2020. That application was unnecessary. However, by the time of the Second Decision of the Judge, the appeal period had expired and extension of time to appeal is required. In view of this history, we will focus on the merits of the intended appeal.

(2)  Prospect of the intended appeal

13.In the applicant’s written submissions, he stated that Taliban blackmailed him and Taliban does not care about the government of Pakistan. Relocation is not possible.

14.In our judgment, the applicant does not have any prospect of success in his intended appeal.

15.The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

16.Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

17.We see no error in the Deputy Judge’s decision. Accordingly, we dismiss the applicant’s summons dated 20 July 2021.

The applicant, unrepresented, acting in person