CAMP 404/2022
[2022] HKCA 1829
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 404 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO 2278 OF 2018)
________________________
BETWEEN |
| | ADNAN UR RASHID | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative
Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
________________________
Before: Hon Yuen and Chow JJA in Court
Date of Written Submissions: 17 October 2022
Date of Judgment: 23 December 2022
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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 3 October 2022, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 13 May 2022 refusing to grant him leave to apply for judicial review (“the Order”).
2. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 12 October 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 23 January 2017 rejecting the Applicant’s non-refoulement claim.
3. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under 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 on 12 May 2016 and was arrested by the police on the same date. On 10 June 2016, he lodged a non-refoulement claim alleging that, if refouled, he would be harmed or killed by a man named Shahid Chaudhary and fellow supporters of a political group abbreviated as “PML-N” because he was a supporter of a rival political group abbreviated as “PTI” and refused to join “PML-N”. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 1376).
5. By a Notice of Decision dated 23 January 2017, the Director rejected the Applicant’s non-refoulement claim on the following applicable grounds: torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).
6. The Applicant appealed the Director’s Decision to the Board. On 12 October 2018, 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 §9 of the CALL-1 Form, as follows:
“The Board explored the material aspects of the applicant’s claim with him [25]-[46]. It noticed a significant discrepancy in the applicant’s claim that, in his original claim, he claimed fear of harm from PML-N but, before the Board, he claimed that his source of fear was from PML-Q [51]. Further, the documents submitted by the applicant had no support for his claim [53]. His free exit and entry of Pakistan showed that the authorities had no interest in him [54]. For these reasons, the Board rejected his claim and dismissed his appeal.”
7. On 19 October 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. He did not give any grounds for judicial review in either the Form 86 or his supporting affirmation filed on the same date. He merely stated in his affirmation that he did not agree with the Board’s Decision, and his life would be in danger in Pakistan.
THE JUDGE’S DECISION
8. On 13 May 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:
“[12] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).
[13] The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
…..
[15] The applicant has raised no valid reason to challenge the Board’s Decision.
[16] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
[17] The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”
9. On 11 August 2022, the Judge refused the Applicant’s application by summons dated 19 July 2022 for an extension of time to appeal against the Order ([2022] HKCFI 2322).
THIS APPLICATION
10. By a summons taken out on 3 October 2022, the Applicant applied to the Court of Appeal for an extension of time to appeal against the Order. In the summons, the Applicant stated the following:
“Please extend time for me to appeal because I failed to appeal as I did not get the High Court letter on time. I applied to extend [time] to the High [Court] but the High Court did not extend.”
11. In his affirmation filed on 3 October 2022 in support of the application, the Applicant stated the following:
“Affirmation for extension of time to appeal as High Court did not extend time. The High Court has two decision I do not agree with them.”
12. In his written submissions dated 17 October 2022, the Applicant stated that he faced life threat in his motherland, his problem was very serious, his enemy was very powerful, and the police would help his enemy because his enemy paid them “big amount”.
DISCUSSION
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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini[2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
17. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 13 May 2022, and has failed to raise any viable ground of appeal against the Order.
18. There is no prospect of success in the Applicant’s intended appeal.
DISPOSITION
19. The application for extension of time to appeal is refused, and the Applicant’s summons of 3 October 2022 is dismissed.
(Maria Yuen)
Justice of Appeal | (Anderson Chow)
Justice of Appeal |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.