Iqbal Qamar Bilal v. Torture Claims Appeal Board

CAMP 361/2023, [2024] HKCA 181

On An Intended Appeal From [2023] HKCFI 2219 &

[2023] HKCFI 2873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 361 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 3792 OF 2019)

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BETWEEN

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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 30 November 2023, 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 30 August 2023 (“the Order”)  refusing to grant leave to apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 4 December 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 10 October 2018 rejecting the Applicant’s non-refoulement claim.

3.Having considered the documents before us, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to 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, and was arrested by the police on 7 December 2011.  He raised a torture claim on the basis that, if he returned to Pakistan, he would be harmed or killed by the family of his brother’s girlfriend over their long standing bitter feud with his family. After his torture claim[1] had been rejected, he sought non-refoulement protection on the same basis.  Details of the Applicant’s claim have been summarised by the Judge at §§1-8 of the CALL-1 Form ([2023] HKCFI 2219).

5.By a Notice of Decision dated 10 October 2018, the Director rejected the Applicant’s non-refoulement claim on all remaining applicable grounds, namely, BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

6.The Applicant appealed the Director’s Decision to the Board.  On 4 December 2019, 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 §12 of the CALL-1 Form:

“By a Decision dated 4 December 2019 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that the Director’s decision was sent on the same day of 10 October 2018 to the Applicant’s lawyer from [Duty Lawyer Service] who then served it on the Applicant on 15 October 2018 at Lai Chi Kok Reception Centre where he was then being detained for one of his drugs charges, that the deadline for him to file his Notice of Appeal was 26 October 2018, that his Notice of Appeal then filed was late by almost 10 months, that such delay was serious and significant, that there was no good or valid reason for such serious delay even though he might have been in detention or imprisonment during the relevant period and with access to legal advice and assistances within detention centers and correctional institutions, that there was no merits in his intended appeal given the correct findings and conclusion reached by the Director in the decision in rejecting his claim, and that there were no other matters of fact within the knowledge of the Board which it was required to take into account as the law then was under Section 37ZT (2)  of the Ordinance or any special circumstances that would make it unjust not to allow the late filing of the Applicant’s Notice of Appeal.”

7.On 20 December 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of relief was given in the Form 86. In his supporting affirmation, the Applicant made a general allegation that the decision of the Board was unfair and unreasonable, but gave no particulars in support of the allegation.

THE JUDGE’S DECISION

8.On 30 August 2023, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[15] In the Applicant’s case, the Board refused to allow the late filing of his Notice of Appeal for the thorough and detailed analysis and reasoning set out in its decision including details of his detentions and/or imprisonments during the relevant or material periods of the service of the Director’s decision on him and thereafter of his access to legal assistance for his intended appeal, and in adopting the proper approach set out in The Secretary of State for the Home Department v Begum (2016)  EWCA Civ 122 as well as taking into account of the merits of the Applicant’s appeal by undertaking a careful consideration of the factual basis of his non-refoulement claim and the findings and conclusion of the Director in his decision, an approach held to be required by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 and Re Qasim Ali [2019] HKCA 430, as the law then was under Section 37ZT (2)  of the Ordinance. As such, 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 findings of the Board.

[16] Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision treated as the final determination of the Applicant’s claim upon the refusal of the late filing of his appeal 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.

[17]  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 respective consideration and assessment of the Applicant’s non-refoulement claim and the late filing of his Notice of Appeal.”

9.On 26 September 2023, the Applicant applied by summons for an extension of time to appeal against the Order.  On 16 November 2023, the Judge refused the Applicant’s application, holding that the Applicant had failed to put forth any proper or valid draft or proposed grounds of appeal, and did not have any prospect of success in his intended appeal.

THIS APPLICATION

10.By a summons taken out on 30 November 2023 in the Court of Appeal, the Applicant applied for leave to appeal out of time against the Order.  In the summons, the Applicant said that he did not receive the sealed Order within 14 days from 30 August 2023 due to it having been lost in the post, and could only get the Order after searching the court file.  He did not, however, set out any intended grounds of appeal in either the summons or his supporting affirmation filed on the same date.

11.In his written submissions dated 12 December 2023, the Applicant sets out some general principles of law relating to non-refoulement claims, but fails to explain how those principles are relevant or applicable to his case.

DISCUSSION

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

13.In deciding whether to extend time to appeal, the 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 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.

15.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases 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)).

16.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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

17.The Applicant has failed to identify any error in the Judge’s decision of 30 August 2023, or raise any viable ground of appeal against the Order.

18.There is no prospect of success in the Applicant’s intended appeal.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

19.The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 30 November 2023 is dismissed.

The Applicant, acting in person