Islam Muhammad v. Torture Claims Appeal Board

CAMP 270/2022

[2022] HKCA 1426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 270 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2060 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Written Submissions:  8 August 2022

Date of Judgment:  30 September 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.On 25 July 2022, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 7 June 2022 refusing to grant to the Applicant an extension of time to appeal against the Judge’s earlier order of 6 July 2021 (“the Order”) refusing to grant him leave to apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 6 September 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 April 2018.

3.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.The Applicant is a national of Pakistan. He entered Hong Kong illegally on 13 February 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 alleging that, if he returned to Pakistan, he would be harmed or killed by a fellow villager over a land dispute. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2021] HKCFI 1969).

5.By a Notice of Decision dated 26 April 2018, 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].

6.The Applicant appealed the Director’s decision to the Board. On 6 September 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:

“In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence between those given to the Director and those in his appeal hearing before the Board as to his alleged threats and ill-treatments inflicted by Torsam on him and his family that it found him not a witness of truth, that it was not satisfied that he had told the truth in relation to the land dispute with Torsam and his men, and that it did not accept that he and his family had been threatened or attacked by Torsam or his men as alleged or that he had left his home and Pakistan for the reason as claimed or that he will face any risk of harm from anyone upon his return to Pakistan that it concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

7.On 27 September 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

8.On 6 July 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[10] On 27 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date other than just a sentence that he is not satisfied with the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

[12] In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 46 – 91 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

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

[14] 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.”

9.On 7 June 2022, the Judge refused the Applicant’s application by summons dated 10 December 2021 for an extension of time to appeal against the Order, holding that the Applicant’s delay of more than 4 months to lodge his appeal was very substantial and inordinate, he had provided no good or valid reason for the delay (his explanation was that he did not receive the Judge’s decision in time, but the court record showed that the decision was sent to the Applicant’s last reported address on 6 July 2021 without being returned through undelivered post), and his intended appeal did not have any prospect of success.

THIS APPLICATION

10.By a summons taken out on 25 July 2022, the Applicant applied for leave to appeal out of time against the decision of the Judge given on 6 July 2021. In his supporting affirmation filed on the same date, the Applicant stated that the decisions of the Director and the Board were unlawful, and that he did not want to go back to Pakistan as his life would be in danger there.

11.In his 3-page written submissions dated 8 August 2022, the Applicant stated that his life would be in danger if he was refouled back to Pakistan. He also complained, inter alia, that the Judge failed to take into account many things and issues (but he failed to identify what those things or issues might be), and alleged that the Judge’s decisions were unlawful.

DISCUSSION

12.Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

13.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.

14.The Applicant’s delay of over 4 months is very substantial and serious. We agree with the Judge that the Applicant has failed to give any good or valid reason for the delay.

15.The prospect of success of an intended appeal is important. The court will not grant an 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. In particular, 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 judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

17.Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

18.The matters raised in the Applicant’s Affirmation and submissions are essentially repetitions of the basis of his non-refoulement claim. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 6 July 2021, and has failed to raise any viable ground of appeal against the Order.

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

DISPOSITION

20.The application for extension of time to appeal is refused, and the Applicant’s summons of 25 July 2022 is dismissed.

The Applicant, acting in person