RE AAMIR NADEEM

CAMP 85/2020

[2021] HKCA 420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 85 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1453 OF 2018)

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J U D G M E N T

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

Introduction

1.  By the decision of 2 July 2019 (“the Decision”)[1], Deputy High Court Judge K.W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 6 July 2018.  In the Board’s decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 22 May 2017 rejecting the applicant’s non-refoulement claim.

2.  On 30 August 2019, the applicant took out a summons for an extension of time to appeal against the Decision and by the decision made on 26 June 2020, the Judge refused to grant leave for the applicant to appeal against the Decision (“the Leave Decision”)[2].

3.  By a summons dated 7 July 2020, the applicant renewed his application before this Court for an extension of time to appeal against the Decision. 

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 29 July 2020, the applicant was directed to lodge his written submissions in support of his summons on or before 18 August 2020.  The applicant lodged his written submissions as directed. 

5.  Under Order 59 rule 14A(1) of the Rules of the High Court (Cap. 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 16 December 2015 and was arrested by the police on the same day.  He was then transferred to the Immigration Department for investigation.  On 20 December 2015, he lodged his non-refoulement claim by way of a written representation on the basis that if he were to return to his home country, he would be harmed or even killed by the supporters of the Pakistan Muslim League (N) (“PML(N)”) as the applicant was a supporter of an opposition party. The applicant further claimed that he feared to be arrested by the Pakistani police because of the accusation of destroying government premises and murder of police officer during a strike.  The factual background was succinctly summarized by the Judge at [2] – [4] of the Decision.

7.  By Notice of Decision dated 22 May 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The Director’s decisions covered the BOR 2 risk[3], the BOR 3 risk[4], the torture risk[5] and the persecution risk[6].

8.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  After hearing the appeal on 14 May 2018, by its decision made on 6 July 2018, the appeal was dismissed.  The Board found that the applicant was not a credible witness as his evidence was inconsistent.  The alleged injury did not attain the minimum severity that come within the definition of “torture”.  Further, reasonable state protection should be available and internal relocation is also a viable option. For the aforesaid reasons, the Board rejected the applicant’s case on all applicable grounds. 

9.  On 24 July 2018, the applicant filed a Form 86 together with his supporting affirmation for leave to apply for judicial review of the Director’s and the Board’s decisions.  The Judge had rightly pointed out that the Director’s decision is not a decision that, within the administrative structure, susceptible to judicial review once an appeal to the Board is pursued by a non-refoulement claimant, see Re Moshsin Ali [2018] HKCA 549. The Judge just dealt with the grounds against the Board’s decision set out in the applicant’s supporting affirmation as follows:

(1)  There was a lack of legal assistance and representation.

(2)  The Board had adopted a biased approach by cherry-picking the Country of origin information (“COI”) to say that state protection is available to him.

(3)  The Board’s decision was not translated to him.

The Judge’s decisions

10.  The application was heard on 23 January 2019 and by the Decision made on 2 July 2019, the Judge refused leave for the applicant to apply for judicial review after due consideration of the Director’s and Board’s decisions.  The reasons were set out at [12] to [20] of the Decision:

“The Director’s Decision

12. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

13. The applicant has not set out any exceptional circumstances.

14. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

15. The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

The Board’s Decision

16. The applicant appeared before me. He confirmed that he considered that he had had a fair hearing before the Adjudicator. But he was not happy with her Decision.

17. The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.” Ground (1) fails.

18. Ground (2) is the applicant’s opinion without any evidence to support it. It fails.

19. The applicant said in court that his friend had assisted him with the hearing bundle and the Board’s Decision. Ground (3) fails.

20. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.”

11.  The 14-day period for the applicant to appeal the Decision, as stipulated by Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), expired on 16 July 2019.  On 30 August 2019, the applicant filed a summons together with supporting affirmation to apply for leave to appeal out of time.  In his supporting affirmation, he advanced the following:

(1)  The Decision was unfair without allowing him an opportunity to clarify his situation in his country.

(2)  The Decision heavily relied upon the COI provided by the Director.

(3)  The applicant was unrepresented and he was not notified that he only had 14 days to appeal.

12.  The summons was heard on 12 November 2019, and by the Leave Decision dated 26 June 2020, the Judge refused the application for leave to appeal the Decision out of time and dismissed the summons.  The applicant did not provide any reason for his delay and the Judge focused on the merit of the case.  The Judge found no merit on grounds (1) and (2) as they were inconsistent to what actually happened.  Further, the court had no duty to notify the applicant of the time limit for his appeal as stated in ground (3). As such, the Judge found no reasonable prospect of success in the applicant’s intended appeal and therefore dismissed his summons accordingly.

The renewed application

13.  On 7 July 2020, the applicant filed a summons together with supporting affirmation seeking leave to appeal against the Leave Decision.  The applicant set out the following in his summons:

“I would like to inform judge that their (sic) were the significant in the TCAB hearing that the TCAB did not observe it. I have a serious issues in my country even I give them proof still they refused my case without any valid reason. The judges were unfair as well. The judges said that they gave freedom to tell everything to them as in I told them all of my problem and current situation but still they refused my case. The judges denied to accept my prious (sic) grounds. So once again I request them to give me extension.”

14.  In his written submissions, he complained against the decisions made by the Board and the Director as follows:

Complaints against the Board

(i)     refusing his appeal unfairly and the decision was unreasonable, irrational, procedurally erroneous and unfair;

(ii)    failing to provide the hearing bundle earlier and the material was all in English; 

(iii)   relying on unofficial, hearsay and outdated sources of news that resulted in groundless speculation that it would be safe for him to return to his home country;

(iv)   failing to examine and give weight to the extended concept of state acquiescence;

(v)    making speculations with online document that practical steps was taken to improve the effectiveness of the Pakistani police to protect its citizens;

(vi)   failing to attain the high standard of fairness as the applicant was not legally represented;

(vii)  failing to advise the applicant to obtain medical report and/or evidence from Pakistani authorities for the assessment for his torture claim and claim on BOR 2 risk;

Complaints against the Director

(viii) failing to consider the concept of extended acquiescence;

(ix)   making mere speculations that the Pakistani government had taken steps to combat the activities of the terrorists which in fact went up in 2016 and 2017 according to research report; and

(x)    contrary to what was quoted in the Director’s decision, the corruption and incompetency of police remain serious.

The applicant cited Ubamaka v. Secretary for Security (2012)15 HKCFAR 743 in support of his contentions and posed a series of questions in relation to the right for non-refoulement protection in Hong Kong.

Legal principles

15.  As rightly pointed out by Lam VP in Farrukh Zaib v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office & other [2020] HKCA 408 at [21], whilst it is technically possible to appeal against a lower court’s decision refusing an extension of time for appealing, it is more appropriate to renew the application for an extension of time before the Court of Appeal[7].   Accordingly, we shall treat the applicant’s summons as if it were a renewed application for leave to appeal against the Decision of out of time.

16.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.

17.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would examine if he has merit in the intended appeal: see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

18.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A).

Discussion

19.  The applicant provided no explanation for his delay in applying leave to appeal against the decision and a delay of 1.5 months cannot be regarded as insignificant or inexcusable.  In the circumstances, the applicant is required to demonstrate that the intended appeal has real prospect of success, before leave of appeal is to be granted, see Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020.

20.  We now turn to the merit of the intended appeal.

21.  Here, the applicant essentially requested this Court to examine the Director’s/Board’s decision with a view to reconsider his claim.  This is not a permitted course of pursuing the appeal with the legal principles stated in [18] of this judgment.  As the applicant failed to raise any discernible and viable grounds of appeal against the Decision save for his vague and un-particularized accusation that the Judge denied his case unfairly in his summons, his intended appeal is bound to fail.

22.  Upon our careful review of the Board’s decision, the Board had duly set out the relevant COI that he had considered in [99] to [168] of its decision and the COI, which covered topics on country reports on human rights practices, criminal law and practices, reports about police system, corruption perceptions, national accountability of government bureaus, Pakistani political settings etc, was obviously considered together with and in light of the applicant’s case.   We do not see how it could be said the Board had relied on outdated and unreliable source of COI when assessing the applicant’s case.

23.  The Board, after due consideration of the available evidence, found that the applicant had not been tortured by the police or government and the alleged assaults by his enemies did not attain the minimum severity for torture and the applicant had failed to establish his case under all applicable grounds.  It is perfectly opened for the Board to reach its findings and conclusions and we see no basis for court’s intervention.

24.  Regarding the complaints on late provision of the hearing bundles and lack of legal representation, they were canvassed at the lower court hearing and duly rejected by the Judge. 

25.  Lastly, the applicant was provided with every opportunity to present his case and produce any documents he intended to rely on, notwithstanding the high standard of fairness, the applicant bears the initial burden of proof and it is incumbent on him to put in evidence to support his case.  His complaint that the court did not advise him to bring in medical report and evidence for his claim BOR 2 risk cannot stand.

26.  In our judgment, nothing set out in the written submissions can constitute a valid ground to support the intended appeal.

27.  We are also satisfied that the Judge had reviewed the Board’s decision carefully and we see no flaw in the Judge’s decision.

28.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 7 July 2020 is dismissed accordingly.

29.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.

[1] [2019] HKCFI 1656

[2] [2020] HKCFI 1263

[3] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

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

[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] see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8].