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HUSSAIN ZAKIR v. TORTURE CLAIMS APPEAL BOARD

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[2022] HKCA 1154-EN-2022-08-11

HUSSAIN ZAKIR v. TORTURE CLAIMS APPEAL BOARD

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CAMP 230 /2021

[2022] HKCA 1154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 230 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 890 OF 2018)

________________________

BETWEEN
	Hussain Zakir	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Barma JA in Court

Date of Written Submission: 20 May 2022

Date of Judgment: 11 August 2022

____________________

J U D G M E N T

____________________

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 Barma JA) handed down on 3 March 2022 ([2022] HKCA 314). The Court of Appeal dismissed the applicant’s summons for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 15 September 2020 ([2020] HKCFI 2279) refusing to grant leave to apply for judicial review concerning his non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 6 May 2022 that the notice of motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 20 May 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 in early March 2014 and was arrested by police on 27 March 2014. He lodged a non-refoulement claim on 11 June 2014 on the basis that he will be harmed or killed by his wife’s family who are against their marriage if he returns to Pakistan.

4. He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. His application was late for more than 5 months. It was refused by judge on 15 June 2021 ^{^[1]}.

5. On 25 June 2021, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal. The application was dismissed by the Court of Appeal on 3 March 2022 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6. The applicant stated his grounds of appeal in the Notice of Motion filed on 6 May 2022 which may be summarised as follows:

(1)  He did not know the failure to lodge skeleton submission would cost him an oral hearing which he specifically requested for.
(2)  Judges were procedurally unfair in the decision. The applicant does not have any knowledge about the judicial review system in Hong Kong but asked his friend to submit written submissions for him. He requested for legal aid to provide him with a legal advisor but they refused.
(3)  The Director of Immigration and the Torture Claims Appeal Board (“the Board”) gave decisions on the basis of some other applicant. His case is genuine and there were no inconsistencies at the hearings. He can provide more proofs if they asked him to. The Board mentioned that the applicant can relocate anywhere but it is not possible in Pakistan. The applicant is married here and cannot leave his wife here alone.
(4)  The Court of First Instance did not judge fairly.

7. The applicant’s further contentions in his written submissions may be summarised as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker.
(2)  The applicant has proofs of the First Information Report (“FIR”) that he cannot relocate in Pakistan but the Board made its decision based on some other applicant because the respondent made a wrong FIR.
(3)  He is married with a local woman in Hong Kong and his visa is pending. He cannot leave his wife here. Once he got a visa, he can settle down.

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 High Court registry was temporarily closed for public health reasons during the general adjournment period between 7 March 2022 and 11 April 2022. The registry has resumed operation since 12 April 2022. Pursuant to Section 71(1A)(a) of the Interpretation and General Clauses Ordinance (Cap. 1), if the act is allowed to be done within a period of time, and the last day of the period is a closure day for the office, the period includes the next following day, not being a closure day for the office. In other words, the deadline for filing the Notice of Motion should fall on 12 April 2022 when the registry reopened. The applicant was late for 24 days in filing his Notice of Motion. He explained in his affirmation that he was late because the court was closed due to pandemic. In view of the fact that he did not act reasonably promptly after the reopening of the court registry and did not give any explanation for his further delay of more than 3 weeks, the applicant’s explanation cannot constitute good ground for the court to grant extension of time.

11. In any event, the applicant’s Notice of Motion is without merits. The applicant’s ground concerning his complaint that the Board made the decision based on some other applicant was not raised in the previous applications before the Court of First Instance or before the Court of Appeal. It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings. Such ground is also totally without basis and the applicant did not have any evidence to refute the Board’s finding against his credibility.

12. The applicant’s grounds and submissions in the present application are just bare assertions which are not supported by any evidence. He failed to show that the Court of Appeal was wrong in dismissing his application and he has failed to identify any 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).

13. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 6 May 2022.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 1584

CAMP 230 /2021

[2022] HKCA 314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 230 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 890 OF 2018)

________________________

BETWEEN
	Hussain Zakir	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and Barma JA in Court

Date of Judgment:

3 March 2022

________________________

J U D G M E N T

________________________

Hon Kwan VP (handing down the Judgment of the Court):

1. On 15 September 2020, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2. On 15 June 2021, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there is no prospect of success in the intended appeal[2].

3. On 25 June 2021, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4. The applicant is a national of Pakistan. He is 42 years old. He entered Hong Kong illegally in early March 2014 and was arrested by police on 27 March 2014. He lodged a non-refoulement claim on 11 June 2014 on the basis that he will be harmed or killed by his wife’s family who are against their marriage if he returns to Pakistan.

5. By a Notice of Decision dated 22 June 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6. The applicant appealed against the Director’s decision to the Board. He was absent at the hearing scheduled before the Board on 2 November 2017. He later explained that he did not receive the notice of hearing. The Board agreed to reschedule the hearing and he attended the adjourned hearing before the Board on 6 February 2018. The Board found that the applicant’s claims are not credible because of the significant inconsistencies and contradictions in his evidence concerning matters which are central to his claims. Although the Board appreciated that the applicant’s previous use of Xanax might have impacted on his ability to recall details of events, this cannot account for the inaccuracies in the supporting documents such as the death certificates and media report submitted by the applicant. After considering all the applicant’s claims, evidence and his explanation to the Board’s enquiries and doubts on the evidence, the Board held that the applicant’s claims and the related supporting documents have been fabricated. The Board decided that the applicant did not make out his non-refoulement claim on any of the applicable grounds and dismissed the appeal on 7 March 2018.

The judge’s decision

7. On 21 May 2018, the applicant applied for leave to apply for judicial review against the decision of the Board. He put forward the following grounds for his intended challenge:

(1)  lack of reasonable basis for rejecting his claim on credibility;
(2)  failure to consider the extended form of state acquiescence;
(3)  failure to fully consider the Country of Origin information (“COI”) reports in assessing the risk to the applicant;
(4)  irregularity in that the decision-maker was a different person from the immigration officer;
(5)  procedural impropriety/unfairness in failing to investigate into the COI of Pakistan;
(6)  irrationality in failing to place weight on relevant information and/or selectively placing weight on irrelevant information;
(7)  irrationality in failing to consider a persistent system of human rights violations;
(8)  irrationality in failing to consider if state protection exists in Pakistan;
(9)  irrationality in placing weight on irrelevant matters or inaccurate or incorrect facts;
(10)  procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;
(11)  procedural impropriety in applying the incorrect standard of proof; and
(12)  no proper basis for consideration of internal relocation.

8. DHCJ Bruno Chan considered the application on paper. The judge held that the applicant’s grounds are just broad and vague assertions without particulars, specifics or elaboration as to how they applied to his case or how the Director or the Board had erred in their decisions. The judge found there is no error of law, procedural unfairness or failure to apply high standards of fairness in the decisions of the Director and the Board. Thus, the judge concluded that the intended judicial review has no prospect of success and dismissed his leave application on 15 September 2020.

Grounds of appeal

9. The applicant did not put forward any grounds of appeal in his summons filed on 25 June 2021. He mentioned in his supporting affirmation that the grounds will be provided on a later date but he has not lodged his written submissions by the prescribed deadline given by the Registrar of Civil Appeal.

Analysis and disposition

10. 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.

11. 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 15 September 2020. The applicant took out a summons in the court below on 1 March 2021. He was late for more than five months. The delay is substantial.

12. The applicant explained that he did not receive the letter from the court despite his change of address in the record of the Immigration Department. He claimed that he did not know how to change his address in the record of the High Court. 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). Therefore, the applicant’s delay is not justifiable.

13. In these circumstances, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal (Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125).

14. In assessing the merit of an 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.

15. 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.

16. In the present case, the applicant did not put forward any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant leave for him to bring judicial review. He failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17. For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to extend time to appeal against the judge’s decision of 15 September 2020 and dismiss the summons filed on 25 June 2021.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

The Applicant, acting in person

[1] [2020] HKCFI 2279

[2] [2021] HKCFI 1584

[3] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.