Khan Waris v. Torture Claims Appeal Board

CAMP 403/2021

[2022] HKCA 606

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 403 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1529 OF 2018)

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Before:  Hon Kwan VP and G Lam JA in Court

Date of Written Submission:  8 October 2021

Date of Judgment:  6 May 2022

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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 7 May 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 31 August 2021, DHCJ Bruno Chan dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal[2].

3.On 24 September 2021, the applicant filed the present summons with the Court of Appeal seeking to appeal the Order made by DHCJ Bruno Chan dated 31 August 2021 and requesting an oral hearing. In light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of DHCJ Bruno Chan dated 7 May 2021.

4.Having considered the materials filed by the applicant, the court considers that the present summons should be determined on the basis of written submissions without an oral hearing pursuant to Order 59, r 14A of the Rules of the High Court, Cap 4A.

5.The applicant is a national of Pakistan. He is 44 years old. He was arrested for illegally remaining in Hong Kong on 4 October 2009. He submitted a non-refoulement claim form on 26 November 2014[3] on the basis that he would be harmed or killed by the terrorist group, namely, the Taliban, for refusing to join them.

6.By a Notice of Decision dated 18 June 2015, the Director of Immigration (“the Director”) rejected the applicant’s claims on all then applicable grounds including torture risk[4], BOR 3 risk[5], and persecution risk[6].

7.By a Notice of Further Decision dated 8 December 2016, the Director rejected the applicant’s claims under BOR 2 risk[7].

8.The applicant appealed against the Director’s Notice of Decision to the Board and attended the hearing before the Board on 22 December 2016. He did not provide further evidence or answer questions raised of his claim by the Board. The Board found that the applicant failed to show that he was in fear of persecution, or that he had suffered any torture in Pakistan. The Board also found no evidence to support the applicant’s claim under BOR 2 risk. Moreover, the Board found that the Pakistani Government is able to provide adequate state protection against the Taliban if needed. Therefore, the Board dismissed his appeal on 26 July 2018.

The judge’s decision

9.On 2 August 2018, the applicant applied for leave to apply for judicial review against the decision of the Board. As noted by DHCJ Bruno Chan at §11 of his judgment, his grounds for his intended challenge appeared to have been copied from some pro forma statements commonly used in such applications and were as follows:

“11…	(1) that there was no reasonable basis for rejecting the credibility of his claim;
	(2) that the Board failed to consider the extended form of acquiescence in his claim;
	(3) that the Board failed to fully consider the COI reports in assessing risk to the Applicant;
	(4) that it was irregular of the decision-maker to be a different person than the interviewing officer;
	(5) procedural impropriety/unfairness in the Board’s failure to investigate into the COI of Pakistan;
	(6) irrationality in the Board’s failure to place weight on relevant information and/or selectively placing weight on irrelevant information;
	(7) irrationality in the Board’s failure to consider a consistent system of human right violations;
	(8) irrationality in the Board’s failure to consider if state protection exists in Pakistan;
	(9) irrationality in the Board’s placing weight on irrelevant matters or on inaccurate or incorrect facts;
	(10) procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;
	(11) procedural impropriety in failing to apply the correct standard of proof; and
	(12) no proper basis for consideration of internal relocation…”

10.As the applicant did not request for an oral hearing, DHCJ Bruno Chan considered the application on paper. The judge held that the above grounds were mainly irrelevant to the applicant’s claim and lacking in particulars or specifics or elaboration as to how they would apply in his case. Furthermore, in the absence of any error of law or irrationality or procedural unfairness, the applicant also failed to show that the Board was wrong in coming to its conclusions. Thus, the judge found that the intended judicial review had no reasonable prospect of success and dismissed the leave application on 7 May 2021.

Grounds of appeal

11.The applicant did not provide any grounds of appeal in his summons. In his supporting affirmation, he stated that he totally disagrees with the decisions of the authorities because he could not understand the English language or the court procedures. In his written submissions, the applicant appeared to have done what he did in the court below by copying from some pro forma statements used in these applications. He stated the following grounds:

“(A) The Respondent had unlawfully fettered his discretion by Refusing my appeal on the grounds that they did not satisfy the Requirement.

(B) The Adjudicator acted in a Procedurally unfair manner in dealing with my Appeal;

(C) The Respondent’s decisions to Refuse my Appeal were unreasonable or irrational in the Public law Sense or are a Result of Procedural ERRORS or unfairness.

(D) The Respondent failed to meet the greater care and duty owed to a Self-Represented claimant;

(4) However, I answered all the questions with honestly and it aggravates me that my credibility was found questionable. I strongly believes that it was an unfair hearing due to lack of care by the TorTure Claims Appeal Board to make appropriate arrangements in Relation to the hearing bundle.

(5) Furthermore, the TorTure claim Appeal board has significantly Relied on the Source of news which is not officially recognised or it is Simply hearsay. They have also Relied on Some cases which are fairly outdated considering the dramatic changes. The lack of credible source of information has Resulted in them making Groundless Speculations that it is safe for me to Return to my country of origin.

(6) The discriminatory act of authorities towards non-refoulement claimant merely on the basis of quick disposed of non-refoulement case is unacceptable and is determental [sic] to the Spirit of the Judicial System.”

Analysis and disposition

12.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.

13.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 judge’s order was made on 7 May 2021. The applicant took out a summons in the court below on 24 May 2021. He was late for 3 days and he has not provided any reasonable explanation for the delay.

14.In light of the short delay, we will focus on the merits of the intended appeal.

15.In assessing the merits 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.

16.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. If no viable ground is put forward to reverse the decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.In the present case, the applicant does not have any reasonably arguable grounds to challenge the decision of the judge. Similar to his submissions to the court below, he simply makes bare allegations without particulars in support in his written submissions. As for his complaint of not being able to understand English, the applicant has admitted in his affirmation that he understands English. The applicant has also set out his grounds in English in his written submissions. This shows that either the applicant is conversant with the English language or that 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 refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 7 May 2021 and dismiss the summons filed on 24 September 2021.

The Applicant, acting in person