KHAN AJAB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 91/2022, [2023] HKCA 1001

On Appeal From [2021] HKCFI 3482

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 91 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 761 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) dated 29 November 2021 refusing to grant leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 6 March 2019.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 31 May 2018 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of Pakistan born in 1973.  He claims to have entered Hong Kong illegally on 12 July 2007.  He was arrested by the police on 24 July 2007 for being an illegal immigrant in Hong Kong.  He lodged a torture claim[1] on 17 August 2007 on the basis that he would be harmed by several individuals who were his enemies because of a land dispute.   The details of his claim are set out in paragraphs 30 to 44 of the Board’s decision.  His torture claim was assessed and rejected on 20 August 2013.

3.  By written representation the applicant lodged a non-refoulement claim on 2 October 2013 based on the same claims as in his torture claim.  The claim was assessed by the Director with reference to all the remaining relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] and BOR 2 risk.[4]  By a notice of decision dated 31 May 2018, the Director rejected the claim. 

4.  The applicant appealed to the Board against the Director’s decision, and an oral hearing was held on 27 November 2018.  At that hearing the applicant initially objected to the Punjabi/English interpreter and then, after the interpreter was replaced, said he did not want to answer any questions and asked the Board to send him its decision after which he would go to the High Court.  After the Board explained the purpose of the hearing, the applicant eventually participated by answering the Board’s questions.

5.  The Board found that there were a number of significant inconsistencies and discrepancies between the applicant’s written claims and his oral evidence to the Board relating to central and crucial aspects of his claims, as well as various serious implausibilities in his evidence.  The Board concluded that the applicant was “not a witness of truth” and that his claims regarding the land dispute were “not credible”.  It did not accept that he had been embroiled in any land dispute as claimed and did not accept he experienced any problems or harm from the alleged enemies. Accordingly the Board considered there was not a real risk the applicant would face any of the relevant forms of harm should he return to Pakistan.

6.  As a result, in its written decision issued on 6 March 2019 the Board dismissed the appeal and affirmed the decision of the Director. 

The Judge’s decisions in the court below

7.  On 19 March 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not however specify any grounds in that form.  In the accompanying affirmation, the applicant simply stated there was danger to his life in Pakistan so that he did not want to go back to his country and that he did not agree with the Board’s decision.

8.  Upon consideration of the documents alone as the applicant had not requested for an oral hearing, the Judge refused to grant leave to apply for judicial review.  That decision was set out in the Form CALL-1 dated 29 November 2021, in which the Judge stated as follows:

“ 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 Decision should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …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.’

15. He has submitted no valid ground to assist his application. Those grounds in his affirmation are only his opinions without evidence to support them.

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. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

9.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant had 14 days to lodge an appeal against Judge’s decision.

10.  The applicant did not appeal within time.  Instead, on 20 January 2022, the applicant filed an affirmation and summons for extension of time to appeal.  In the affirmation, the applicant stated that he was then detained by the immigration authorities and that he had not received any decision at his residential address and only knew about it from his immigration officer.

11.  Determining the application on paper, by his decision dated 22 February 2022, the Judge dismissed the summons on the ground that there was no realistic prospect of success in the intended appeal.  

The renewed application before this Court

12.  By the present summons filed on 12 April 2022, the applicant made an application to this court for extension of time for him to appeal against the decision of the Judge refusing to grant leave for judicial review.  In his affirmation, the applicant said he would like to appeal out of time as he was unaware of the 14-day time limit and never received the court’s decision at his residential address and only came to know about it from his immigration officer.  He did not provide any intended grounds of appeal, other than stating that the Judge’s decision had been reached unfairly without allowing him an opportunity to clarify his case and the situation in his country.  He also stated that the relevant visits to the Immigration Centre where he was detained had been suspended due to the pandemic so that he had been unable to file the appeal.

13.  In his written submissions, the applicant merely set out various principles and passages from past cases without in any way explaining how they are relevant to his case. 

14.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we consider it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

15.  The delay of over a month (from 13 December 2021 when time expired to 20 January 2022) in this case is substantial.  It was the applicant’s responsibility as a litigant to ensure that there was on record an appropriate address to which the court’s communications with him could be sent.  The applicant did not explain when he became detained at the Immigration Centre instead of living at the residential address he provided to the court.  In any event, even assuming in the applicant’s favour in the circumstances of this case that he did not in fact read the decision until later because he had been detained, an extension of time should not be granted in the court’s discretion when there are no prospects of success at all in the intended appeal.  Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.   

16.  In the present case, the Board, having heard the applicant in person, concluded that his evidence about the core parts of his claim was not credible.  The Board was not satisfied he would be subject to any risk of harm if he returned to his country.   This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the detailed reasons it gave in its decision.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish any such public law grounds.

17.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in refusing to grant leave for judicial review.  By virtue of Order 53 rule 3(3) of the Rules of the High Court, the Judge was entitled to proceed on the basis of the written materials without an oral hearing.  The applicant has failed to specify in what respects he could have clarified his case and the situation in his country had the judge held an oral hearing. 

18.  We do not see any prospect of success at all in the intended appeal.  The applicant’s summons is accordingly dismissed.

[1]  This refers to the claim based on 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 of 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 and its 1967 Protocol.

[4]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).