CAMP 98/2022
[2022] HKCA 1019
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 98 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO 2199 OF 2018)
________________________
BETWEEN
| | RIZWAN KHAN | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative Interested Party |
________________________
Before: Hon Cheung and Chow JJA in Court
Date of Written Submissions: 22 April 2022
Date of Judgment: 2 August 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 13 April 2022, the Applicant took out a summons with a supporting affirmation seeking an extension of time to appeal against the order of Deputy High Court Judge P Li (“the Judge”) dated 18 November 2021 (“the Order”) refusing to grant him leave to apply for judicial review.
2. The intended judicial review was against the decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 18 October 2016 and 8 October 2018, which dismissed the Applicant’s appeals against the decisions of the Director of Immigration (“the Director”) dated 18 December 2014 and 24 February 2017.
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 from Mainland China on 2 January 2007. He was arrested by the police on 31 January 2007. He raised a torture claim on 25 August 2008 (which was later treated as a non-refoulement claim), alleging that if he was refouled, he would be harmed or killed by his uncle Yaseen as a result of a land dispute. Details of the Applicant’s claim have been summarised by the Judge at §§1-8 of the CALL-1 Form ([2021] HKCFI 3423).
5. By a Notice of Decision dated 18 December 2014, the Director rejected the Applicant’s non-refoulement claim on the following applicable grounds: risk of torture[1], BOR 3 risk[2], and persecution risk[3].
6. By a Notice of Further Decision dated 24 February 2017, the Director rejected the Applicant’s claim based on BOR 2 risk[4].
7. On 18 October 2016, the Board dismissed the Applicant’s appeal in relation to the risk of torture, BOR 3 risk, and persecution risk, and confirmed the Director’s decision of 18 December 2014. The Board found that the Applicant was not a credible witness, and failed to establish a plausible account that he had been harassed by his uncle.
8. The Applicant also appealed against the Director’s further decision of 24 February 2017. However, at a hearing before the Board on 3 October 2018, the Applicant asserted that “his problem back at home has been resolved”. The Board dismissed on Applicant’s appeal in relation to BOR 2 risk on 8 October 2018.
JUDGE’S DECISION
9. On 11 October 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s decisions.
10. On 18 November 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“16. It is the duty of the adjudicator to establish the facts and the credibility of an applicant. In general, this court would not interfere. In a leave application, this court would decide whether there is any error of law and procedure. Whether the TCAB decision is rational.
17. The applicant’s inconsistency was serious. This court agrees with the adjudicator that he was not credible. His factual basis was not plausible. There was no real risk of harm if he returned to Pakistan. There was no error of law or procedure, the TCAB decisions are rational.”
11. On 4 March 2022, the Judge refused the Applicant’s application by summons dated 10 January 2022 for an extension of time to appeal against the Order.
THIS APPLICATION
12. By a summons taken out on 13 April 2022, the Applicant renewed his application for an extension of time to appeal against the Order to the Court of Appeal. In his supporting affirmation filed on the same date, the Applicant wrote that he was late in filing his application because of a lack of knowledge and insufficient sources.
13. In his 5-page written submissions dated 22 April 2022, the Applicant complained that the Board ignored issues relating to his case and that he would be in danger in his home country.
DISCUSSION
14. 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.
15. The prospect of success of an intended appeal is important. The court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike[2019] HKCA 702, at §19.
16. The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration[2018] HKCA 524, at §14.
17. The Applicant’s delay of over 5 weeks is substantial. His explanation that the delay was due to his lack of knowledge and insufficient resources is not a valid one.
18. In any event, the Applicant has failed to point to or substantiate any alleged error of the Judge in his decision dated 18 November 2021, and has failed to raise any viable ground of appeal against the Judge’s decision in his summons or affirmation or written submissions.
19. There is no prospect of success in the Applicant’s intended appeal.
DISPOSITION
20. The application for extension of time to appeal is refused, and the Applicant’s summons of 13 April 2022 is dismissed.
(Peter Cheung)
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.