Fayaz Muhammad v. Torture Claims Appeal Board

CAMP 275/2022

[2022] HKCA 1806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 275 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2194 OF 2018)

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Before:  Hon Kwan VP and Au JA in Court

Date of Submission:  9 August 2022

Date of Judgment:  13 December 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 2 September 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 7 June 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there are no merits in the intended appeal[2].

3.On 26 July 2022, the applicant filed the present summons with the Court of Appeal apparently seeking to appeal against the order made by the judge dated 7 June 2022. In light of the decision of 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 the judge dated 2 September 2021.

4.The applicant is a national of Pakistan. He is 52 years old. He entered Hong Kong illegally on 27 November 2013 and upon surrendering to the Immigration Department on 10 December 2013, he raised a non-refoulement claim subsequently on 28 February 2014 on the basis that he would be harmed or killed by members of rival political parties if he is returned to Pakistan.

5.By a Notice of Decision dated 27 November 2015, the Director of Immigration rejected the applicant’s claim in respect of torture risk[3], BOR 3 risk[4], and persecution risk[5] (“Director’s Decision”).

6.By a Notice of Further Decision dated 27 February 2017, the Director rejected the applicant’s claim in respect of BOR 2 risk[6] (“Director’s Further Decision”).

7.The applicant appealed against the Director’s Decision to the Board and attended the hearing before the Board on 22 September 2016. While the Board found that the applicant had proved much of his case on the balance of probabilities, the Board formed the view that he could reasonably and without undue hardship relocate to other parts of Pakistan and his claims to non-refoulement failed on this basis. There was no evidence that the state is unable or unwilling to protect the applicant. In light of its findings, the Board dismissed the applicant’s appeal on 8 November 2016 (“Board’s Decision”).

8.On 24 May 2017, the applicant filed a Form 86 under HCAL 231/2017 applying for leave to apply for judicial review against the Board’s Decision. On 16 November 2017, his application for leave to apply for judicial review was refused by Au-Yeung J after an oral hearing. It was held that the applicant did not put forward arguable grounds that would satisfy the appropriate test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676 at §§14-17. Au-Yeung J was of the view that the applicant failed to show that the adjudicator had fettered his own discretion, erred in law, had acted in a procedurally unfair manner, or was otherwise unreasonable or irrational in the public law sense.

9.The applicant also appealed against the Director’s Further Decision to the Board on 8 March 2017. The Board held that a hearing was unnecessary as the complaints raised by the applicant in the appeal against the Further Decision were essentially the same as those in the previous appeal before the Board. As there was no new substance in the subsequent appeal, the Board dismissed the applicant’s appeal on 5 October 2018 and affirmed the Director’s Further Decision (“Board’s Further Decision”).

The judge’s decision

10.On 10 October 2018, the applicant applied for leave to apply for judicial review against the Board’s Further Decision. This is HCAL 2194/2018. He did not supply any grounds in support of his application. In his supporting affirmation, the applicant merely stated that the decision made by the Immigration Department disregarded his dangerous situation and annexed a copy of the Board’s Further Decision. As he did not request an oral hearing, DHCJ Bruno Chan dealt with the application on paper.

11.The judge was of the view that a determination was already made by Au-Yeung J, and there was no appeal from that decision. Without any further facts or materials from the applicant, there was nothing to show that the Board had committed any error of law or procedural unfairness in the process before the Board. And in the absence of additional facts or materials for his BOR 2 claim, the judge was of the view the Board was entitled to find there is no basis that he would face any real risk of his non-derogable rights under HKBOR including the right of life under BOR 2 being violated upon his return to his home country. Thus, the judge found that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 2 September 2021.

Grounds of appeal

12.The applicant did not provide any grounds of appeal in his summons or his affirmation in support, save that he disagrees with the decision of the court. As for his written submissions, the applicant repeated that he disagrees with the decisions of the Director and the Board and the dangers he would face in Pakistan, and further seeks to challenge the decision of the court.

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 judge’s order was made on 2 September 2021. The applicant took out a summons in the court below on 7 December 2021, he was late for about 11 weeks. This delay was substantial. The applicant’s reason for the delay was that he did not receive the court’s decision.

15.We do not find this reason acceptable. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

16.As the applicant’s delay is inexcusable, he must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

17.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.

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. 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.

19.In the present case, there was no reasonably arguable ground of appeal put forward by the applicant against the judge’s decision in refusing to grant leave for him to bring judicial review. No particulars were provided to show that the Board did not apply high standards of fairness or had acted in a procedurally unfair manner. In any event, the applicant failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

20.For the above reasons, there is no reasonable prospect of success in the applicant’s intended appeal, let alone real prospect of success. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 2 September 2021 and dismiss the summons filed on 26 July 2022.

The Applicant, acting in person