Case Detail

ALI SHAFQAT v. TORTURE CLAIMS APPEAL BOARD

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[2022] HKCA 1509-EN-2022-10-12

ALI SHAFQAT v. TORTURE CLAIMS APPEAL BOARD

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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)

________________________

BETWEEN
	Ali Shafqat	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Chow JA in Court

Date of Written Submission: 6 June 2022

Date of Judgment: 12 October 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 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.

(Susan Kwan)
Vice President

(Anderson Chow)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 992

[2] [2021] HKCFI 2024

CAMP 278/2021

[2022] HKCA 259

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)

________________________

BETWEEN
	Ali Shafqat	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Chow JA in Court

Date of Judgment: 25 February 2022

________________________

J U D G M E N T

________________________

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

1. On 14 April 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 15 July 2021, the applicant’s application for extension of time to appeal against the said decision was dismissed by the judge as there is no reasonable prospect of success in the intended appeal^{^[2]}.

3. On 23 July 2021, the applicant filed the present summons with the Court of Appeal seeking to set aside the order dated 15 July 2021 and for leave to file a notice of appeal. This application should be treated as a renewed application for leave to appeal out of time against the decision dated 14 April 2021 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4. The applicant is a national of Pakistan. He is 41 years old. He entered Hong Kong illegally on 28 September 2009 and was arrested by the police on the same day.

5. The applicant previously made a torture claim under Part VIIC of the Immigration Ordinance, Cap. 115, on 30 September 2009, and the torture claim was rejected on 18 February 2013.

6. The applicant 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 by the name of Ayub Khan (“Ayub”) due to the applicant’s refusal to sell his farmland to Ayub.

The Director’s decision

7. By a Notice of Decision dated 30 August 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on BOR 2 risk^{^[3]}, BOR 3 risk^{^[4]} and persecution risk^{^[5]}.

The Board’s decision

8. The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 15 February 2018. The Board found no reliable or objective evidence of any threats against the applicant from Ayub all these years after his departure over the alleged land dispute. In any event, it was a private land dispute without any evidence of state or official involvement. It also appears that state/police protection, as well as reasonable internal relocation, would be available within Pakistan for the applicant to move safely to other areas away from his home district without any risk of being located. Therefore, the Board dismissed the appeal on 25 May 2018.

The intended judicial review

9. The applicant filed a Form 86 and an affirmation on 6 June 2018 (HCAL 1034/2018) for leave to apply for judicial review against the decisions of the Director and the Board, but no grounds for seeking relief was given in his Form 86 or supporting affirmation. He merely attached a copy of the Board’s decision without putting forward any proper grounds for his intended challenge, nor did he request any oral hearing for his application.

The judge’s decision

10. The judge dealt with the application to apply for leave for judicial review on paper. He found no error of law or procedural unfairness in the decisions of both the Director and the Board, and no failures on part of the Director or the Board to apply high standards of fairness in their consideration and assessment of the applicant’s claim. There being no reasonably arguable basis for the intended challenge, the judge refused the leave application on 14 April 2021.

Grounds of intended appeal

11. In his supporting affirmation for the present application, the applicant claims that he did not put forward any grounds for appeal because he has no understanding of the legal system in Hong Kong and has to request for help from NGOs to lodge the appeal.

12. He has not lodged any written submission for this application as directed by Registrar of Civil Appeals on 23 July 2021. The Registrar has directed that the Court will decide whether to determine the application on paper. Having considered the papers in these proceedings, as well as the Court file in HCAL 1034/2018, we think it appropriate to deal with this application without a hearing and proceed to do so.

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 order was made on 14 April 2021. The applicant took out a summons for leave to appeal out of time at the court below on 5 May 2021. He was late by 7 days.

15. The applicant explained in his supporting affirmation filed with the court below that he was late as he was unrepresented and was not aware of the relevant rule until later when he was so advised by his friend, and sought help from an NGO, but by then he was already out of time with his intended appeal.

16. Even if the court is minded to accept his explanation in view of the short delay in the present case, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^{^[6]}.

17. The general principles regarding an appeal in a non‑refoulement case 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. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

19. In the present application, the applicant has not put forward any valid ground to challenge the judge’s decision. There is no error of law or procedural unfairness in the decisions of both the Director and the Board, and no failures on part of the Director or the Board to apply high standards of fairness. His proposed application for judicial review cannot get off the ground. He failed to show any prospect of success in his intended appeal. We therefore refuse to extend time to appeal against the judge’s decision of 14 April 2021 and dismiss the summons filed on 23 July 2021.

(Susan Kwan)
Vice President

(Anderson Chow)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 992

[2] [2021] HKCFI 2024

[3] 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).

[4] 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).

[5] 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.

[6] Re Gurung Min Bahadur [2018] HKCA 226 §10