Case Detail

ANWAR NOMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2023] HKCA 1215-EN-2023-11-08

ANWAR NOMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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CAMP 552/2022, [2023] HKCA 1215

On appeal from [2021] HKCFI 3408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 552 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 260 OF 2019)

________________________

BETWEEN
	Anwar Noman	Applicant
	and
	Torture Claims Appeal Board /	Putative
	Non refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and Cheung JA in Court

Date of Written Submission:	23 June 2023
Date of Judgment:	8 November 2023

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s application by way of Notice of Motion filed on 8 June 2023 for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 8 June 2023 ([2023] HKCA 713). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 25 November 2021 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim upon his request to withdraw his case.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 23 June 2023. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

Grounds of appeal

3. The grounds raised in the applicant’s Notice of Motion filed on 8 June 2023 may be summarised as follows:

(1)  The judges were wrong as a matter of law for not applying the principle of irrationality to the decision made by the Director of Immigration in refusing his application for judicial review.
(2)  There is some error in law in the decision. The decision maker just relied on the Country of Origin information (“COI”) and previous facts which favour the rejection of the applicant’s claim.
(3)  The actual situation is different from the COI. The immigration officer and the court ignored the evidence of violence towards minorities, searching for unrealistic silver lining.
(4)  The judge did not apply the law properly.

4. The applicant has also advanced the following further grounds in his supporting affirmation filed on 8 June 2023:

(1)  He was unrepresented and did not have access to legal advice.
(2)  There is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.
(3)  The merits of his ground of appeal constitute sufficient reason and justification for the court to exercise its discretion in allowing his appeal.

5. As for the applicant’s written submissions, he merely copied verbatim from the submissions he lodged previously before this court on 11 January 2023, which were summarised in the Court of Appeal’s decision at §10. Hence, we do not intend to repeat them here.

Analysis and disposition

6. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) 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.

7. As stated previously in the Court of Appeal’s decision at §16:

“16. The applicant’s grounds in his written submissions were not raised in his previous application at the court below. These new grounds should not be entertained as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below [Re Qadir Sher[2018] HKCA 160 at §11.”

8. The above passage is applicable to the new grounds and contentions raised for the first time in the Notice of Motion and the supporting affirmation. In any event, these contentions are just bare assertions without evidence in support. As for the applicant’s specific complaint regarding the lack of access to legal advice, this is unmeritorious. The Court of Appeal has repeatedly held that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings (Re Paswan Shibu Lal[2018] HKCA 249 at §21).

9. In conclusion, the Court of Appeal has duly considered the applicant’s explanation for the delay and given reasons for refusing to grant extension of time in the judgment dated 8 June 2023. The applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his application, nor did he 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).

10. For the above reasons, we refuse to give leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 8 June 2023.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant, acting in person

CAMP 552/2022, [2023] HKCA 713

On appeal from [2021] HKCFI 3408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 552 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 260 OF 2019)

________________________

BETWEEN
	Anwar Noman	Applicant
	and
	Torture Claims Appeal Board /	Putative
	Non refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and Cheung JA in Court

Date of Written Submission:	11 January 2023
Date of Judgment:	8 June 2023

_______________

J U D G M E N T

_______________

Hon Kwan VP (giving the Judgment of the Court):

Background

1. On 25 November 2021, Deputy High Court Judge K W Lung dismissed 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 claim upon the applicant’s request to withdraw his case[1].

2. On 4 November 2022, the applicant filed a summons stating that he does not want to go back to his country because his life is not safe there and he got married in Hong Kong. The judge treated this summons as an application for leave to appeal against the said decision out of time. The summons was dismissed by the judge on 15 December 2022[2].

3. On 29 December 2022, the applicant filed the present summons seeking leave to appeal against the decision dated 15 December 2022. This application should be treated as a renewed application for extension of time to appeal against the judge’s decision of 25 November 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 entered Hong Kong on 3 November 2014 as a visitor and subsequently overstayed. He surrendered to the Immigration Department on 14 November 2014. On 21 January 2015, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his business partner who suspected that he has embezzled the company’s money.

The decisions of the Director and the Board

5. By a Notice of Decision dated 29 March 2018, the Director of Immigration (“the Director”) rejected the applicant’s 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 attended the hearing before the Board on 16 October 2018. Because of the significant inconsistencies and vagueness in his evidence, the Board considered the applicant’s claims regarding his business partnership not credible. The Board did not accept that the applicant would face any form of harm upon his return to his home country and dismissed the appeal on 18 January 2019.

The intended judicial review

7. On 28 January 2019, the applicant filed a Form 86 and an affirmation in HCAL 260/2019 to seek leave to bring judicial review against the Board’s decision. He did not put forward any grounds for his intended challenge.

8. On 19 October 2021, the applicant filed an affirmation stating that he would like to formally withdraw his case as the conflict in Pakistan has been resolved and he hopes to go back to Pakistan.

The judge’s decision

9. DHCJ K W Lung dealt with the application on paper and dismissed the leave application on 25 November 2021 as the applicant has no problem in his country.

Grounds of intended appeal

10. The applicant stated his grounds of appeal in the written submissions which 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; and
(2) the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

11. In considering whether to extend time to appeal 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.

12. 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 25 November 2021 and the applicant was late by more than 9 months when he took out the summons at the court below on 4 November 2022, exclusive of the court’s summer vacation in August. He explained that he did not receive the judgment from the court by post.

13. 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]). The court had already sent a letter to the applicant on 8 November 2021 informing him that the judgment would be ready for handing down as soon as possible or in late November 2021. The judge’s decision was then sent to the applicant’s address by post on 25 November 2021. Under these circumstances, the applicant’s explanation for the substantial delay and inaction is not justifiable.

14. Where a delay is inexcusable, 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).

15. 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.

16. The applicant’s grounds in his written submissions were not raised in his previous application at the court below. These new grounds should not be entertained as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[7].

17. In any event, the applicant’s grounds are just bare assertions without evidence in support and contrary to the facts. In particular, the Board has given detailed analysis in assessing the applicant’s credibility. The applicant failed to adduce any evidence to refute the Board’s findings. Furthermore, he failed to demonstrate that the judge was wrong in dismissing his leave application upon his own request.

18. For the above reasons, there is no prospect of success, let alone real prospect of success, in the intended appeal. We refuse to exercise our discretion to extend time to appeal against the judge’s decision of 25 November 2021. The summons filed on 29 December 2022 is dismissed.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 3408

[2] [2022] HKCFI 3587

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[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.

[7] Re Qadir Sher[2018] HKCA 160 at §11