Murtaza Ghulam v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CAMP 596/2021

[2022] HKCA 311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 596 OF 2021

(ON APPEAL FROM HCAL 2488 OF 2018)

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BETWEEN

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Before:  Hon Au and Chow JJA in Court

Date of Written Submissions:  11 January 2022

Date of Judgment:  1 March 2022

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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 28 December 2021, the Applicant applied to this Court for an extension of time to appeal against the decision made by Deputy High Court Bruno Chan (“the Judge”)  on 6 July 2021 refusing leave to the Applicant to apply for judicial review. On 15 December 2021, the Judge refused to grant the Applicant an extension of time to appeal.

2.Having considered the documents, 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.

BACKGROUND

3.The Applicant is a national of Pakistan.  He came to Hong Kong illegally on 1 January 2016 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the local supporters of a rival political party for refusing to join them.  Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2021] HKCFI 1972).

4.By a Notice of Decision dated 28 December 2017, the Director of Immigration (“the Director”)  rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

5.On 9 January 2018, the Applicant appealed the Director’s Decision to the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”).  On 18 October 2018, the Board rejected the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”).  The Board found no reliable evidence or reason for the Applicant to have been specifically targeted by the rival political supporters and in any event, his party had since won the next general election and was now the ruling party in the Pakistani government.  The Board also considered that state and police protection would be available to the Applicant upon his return to Pakistan, and there would be reasonable internal relocation options for him.  Having considered the evidence, the Board concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

THE JUDGE’S DECISION

6.On 6 November 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

7.On 6 July 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.  At §§11-13 of Form CALL-1, the Judge stated as follows:

“11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

13. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

THE JUDGE’S EXTENSION DECISION

8.Under Order 53, Rule 3(4)  of the RHC, the Applicant may appeal against the Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed or served by the Applicant within the 14-day period.

9.The Applicant filed a summons dated 27 July 2021 applying for extension of time to appeal.  At the hearing of his summons, he said that he received the decision late in the mail.  The Judge considered that a delay of 7 days might not be considered as substantial or significant, and given that he was unrepresented, focused on the prospect of success of the Applicant’s intended appeal (see [2021] HKCFI 3661 at §4).

10.The Judge found that the Applicant had not put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it might reasonably be argued that the decision was unfair or unreasonable either in his summons or his affirmation and thus, there was no prospect of success in his intended appeal.

11.Accordingly, on 15 December 2021, the Judge refused to extend time for the Applicant’s appeal and dismissed his application.

THIS APPLICATION

12.By a summons taken out on 28 December 2021, the Applicant applied to this Court for an extension of time to appeal against the decision of the Judge dated 6 July 2021.  In his summons and supporting affirmation filed 28 December 2021, the Applicant stated that he wanted an extension of time to appeal as the High Court refused to extend time for his appeal.

13.In his written submissions filed on 11 January 2022, the Applicant stated that it was wrong to reject his claim, the Bill of Rights Ordinance was not followed, and the “adjudicator give his own decision not from the law”.

DISCUSSION

14.In deciding whether to extend 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 is granted.

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

16.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.

17.Like the Judge, we will focus on the prospect of success of the Applicant’s intended appeal.  The Applicant has only put forth bare assertions in his written submissions and has not provided any particulars of, or shown, any errors in the Judge’s decision to refuse to grant leave to apply for judicial review, or raised any viable grounds of appeal against the Judge’s decision.

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

DISPOSITION

19.The application for extension of time to appeal is refused, and the Applicant’s summons of 28 December 2021 is dismissed.

The Applicant, acting in person