Ali Shafqat v. Torture Claims Appeal Board

CAMP 278/2021

[2022] HKCA 1509

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 Written Submission:  6 June 2022

Date of Judgment:  12 October 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.This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chow JA) handed down on 25 February 2022 ([2022] HKCA 259). The Court of Appeal refused to grant leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan dated 14 April 2021 refusing to grant leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 24 May 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 6 June 2022. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.The applicant is a national of Pakistan. He entered Hong Kong illegally on 28 September 2009 and was arrested by the police on the same day. He lodged a torture claim on 30 September 2009 which was rejected on 18 February 2013. He 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 due to the applicant’s refusal to sell his farmland.

4.He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 15 July 2021[2].

5.On 23 July 2021, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 25 February 2022 as he failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.In the Notice of Motion filed on 24 May 2022, the applicant stated that there are errors in “law maker authorities” and that his case was not determined fairly by the Director of Immigration (“the Director”) and the Board.

7.His further contentions in his written submissions may be summarised as follows:

(1)  His case has not been determined fairly.

(2)  The authorities should take into account the real procedural unfairness and put aside public policies of trying to dispose of non-refoulement claim as quickly as possible. The discriminatory act of the authorities towards non-refoulement claimant is unacceptable and is detrimental to the spirit of the judicial system.

(3)  The Director of Immigration and the Board have not carefully and thoroughly assessed his case. Their observations are wrong. It is untrue that state protection is available in Pakistan. The fact that the applicant had attempted to report to the police but in vain is clear indication that corruption is still serious in Pakistan and the authorities are ineffective.

(4)  The Director failed to ensure that the applicant was aware of his rights and the definitions of BOR 2 when making the further decision. Because of the lack of language assistance and legal representation, the applicant had no understanding of the process and the reason for rejecting his claim.

Analysis and disposition

8.Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

9.Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10.The applicant was late for about 2 months in filing the Notice of Motion. He explained that he was not aware of the deadline for filing. The same reason had been relied on in his previous application but he still did not attempt to find out the deadline for filing the Notice of Motion after failing to meet the deadline last time. Under these circumstances, his reason for the delay is not justifiable so there is no good ground for the court to grant extension of time for the applicant to file his Notice of Motion. For this reason alone, this application should be dismissed.

11.In any event, the applicant’s complaints against the decisions of the Director and the Board were not raised in his previous applications before the court below and the Court of Appeal, not to mention that they are not supported by any credible evidence. In particular, he has not produced any evidence to rebut the finding that there is no substantial ground for believing that there will be any real risk of him being harmed or killed upon his return to Pakistan. He failed to demonstrate that the Court of Appeal was wrong in rejecting his application and has not identified any specific question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12.For the above reasons, we dismiss the Notice of Motion filed on 24 May 2022 for leave to appeal to the Court of Final Appeal.

The Applicant, acting in person