Ali Shafqat v. Torture Claims Appeal Board

CAMP 278/2021

[2022] HKCA 259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 278 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1034 OF 2018)

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Before: Hon Kwan VP and Chow JA in Court

Date of Judgment: 25 February 2022

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.On 14 April 2021, Deputy High Court Judge Bruno Chan 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 15 July 2021, 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 23 July 2021, the applicant filed the present summons with the Court of Appeal seeking to set aside the order dated 15 July 2021 and for leave to file a notice of appeal.  This application should be treated as a renewed application for leave to appeal out of time against the decision dated 14 April 2021 (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 41 years old.  He entered Hong Kong illegally on 28 September 2009 and was arrested by the police on the same day.

5.The applicant previously made a torture claim under Part VIIC of the Immigration Ordinance, Cap. 115, on 30 September 2009, and the torture claim was rejected on 18 February 2013.

6.The applicant then lodged a non-refoulement claim on 3 December 2013. His claim was made on the basis that he will be harmed or killed by a landlord by the name of Ayub Khan (“Ayub”) due to the applicant’s refusal to sell his farmland to Ayub.

The Director’s decision

7.By a Notice of Decision dated 30 August 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

The Board’s decision

8.The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 15 February 2018.  The Board found no reliable or objective evidence of any threats against the applicant from Ayub all these years after his departure over the alleged land dispute.  In any event, it was a private land dispute without any evidence of state or official involvement.  It also appears that state/police protection, as well as reasonable internal relocation, would be available within Pakistan for the applicant to move safely to other areas away from his home district without any risk of being located.  Therefore, the Board dismissed the appeal on 25 May 2018. 

The intended judicial review

9.The applicant filed a Form 86 and an affirmation on 6 June 2018 (HCAL 1034/2018) for leave to apply for judicial review against the decisions of the Director and the Board, but no grounds for seeking relief was given in his Form 86 or supporting affirmation.  He merely attached a copy of the Board’s decision without putting forward any proper grounds for his intended challenge, nor did he request any oral hearing for his application.

The judge’s decision

10.The judge dealt with the application to apply for leave for judicial review on paper.  He found no error of law or procedural unfairness in the decisions of both the Director and the Board, and no failures on part of the Director or the Board to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  There being no reasonably arguable basis for the intended challenge, the judge refused the leave application on 14 April 2021. 

Grounds of intended appeal

11.In his supporting affirmation for the present application, the applicant claims that he did not put forward any grounds for appeal because he has no understanding of the legal system in Hong Kong and has to request for help from NGOs to lodge the appeal. 

12.He has not lodged any written submission for this application as directed by Registrar of Civil Appeals on 23 July 2021.  The Registrar has directed that the Court will decide whether to determine the application on paper.  Having considered the papers in these proceedings, as well as the Court file in HCAL 1034/2018, we think it appropriate to deal with this application without a hearing and proceed to do so. 

Analysis and disposition

13.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.

14.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 14 April 2021.  The applicant took out a summons for leave to appeal out of time at the court below on 5 May 2021.  He was late by 7 days. 

15.The applicant explained in his supporting affirmation filed with the court below that he was late as he was unrepresented and was not aware of the relevant rule until later when he was so advised by his friend, and sought help from an NGO, but by then he was already out of time with his intended appeal. 

16.Even if the court is minded to accept his explanation in view of the short delay in the present case, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^[6].

17.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

18.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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

19.In the present application, the applicant has not put forward any valid ground to challenge the judge’s decision. There is no error of law or procedural unfairness in the decisions of both the Director and the Board, and no failures on part of the Director or the Board to apply high standards of fairness.  His proposed application for judicial review cannot get off the ground.  He failed to show any prospect of success in his intended appeal.  We therefore refuse to extend time to appeal against the judge’s decision of 14 April 2021 and dismiss the summons filed on 23 July 2021.

The Applicant, acting in person

[1] [2021] HKCFI 992

[2] [2021] HKCFI 2024

[3] 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).

[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] Re Gurung Min Bahadur [2018] HKCA 226 §10