ALI MALIK v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CAMP 259/2020

[2021] HKCA 1151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 259 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 2915 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 18 October 2019, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to apply for leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2.  On 12 June 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 1 November 2019.  The application was dismissed by DHCJ C P Pang on 17 December 2020[2].

3.  On 29 December 2020, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal against the decision of DHCJ K W Lung dated 18 October 2019.

4.  The applicant is a national of Pakistan.  He is 35 years old.  He entered Hong Kong illegally on 25 May 2006.  He was arrested by the police on 3 February 2008 for indecent assault and remaining illegally. He was subsequently convicted of the offences and sentenced to 16 months’ imprisonment.  He raised his torture claim on 18 July 2008 on the basis that he will be harmed or killed by one Abbas, Abbas’s father and/or his gang if the applicant returns to Pakistan as he had hit Abbas with a wicket in a cricket match in 2006.

The Director’s decisions

5.  By a Notice of Decision dated 14 November 2014, the Director of Immigration (“the Director”) rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

6.  By a Notice of Further Decision dated 9 October 2017, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk[6] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non‑refoulement claim. 

The Board’s decision

7.  The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 10 November 2015.  The Board subsequently became aware of the Notice of Further Decision issued by the Director on 9 October 2017 and invited the applicant to provide additional facts or representations regarding the Director’s rejection of his claim under BOR 2 risk.  The applicant did not give any response to the Board.

8.  The Board found that the applicant has not been telling the truth and there is no reasonably credible account of events for the Board to draw the inference that the applicant would likely be at risk of harm under any of the applicable grounds in his country.  The Board also observed that the applicant met with no incident when he lived in Lahore and held that the applicant has the option of relocating to Lahore or Karachi should there be any possible risk of harm in his native village.  Therefore, the appeal was dismissed by the Board on 7 March 2018.

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 19 December 2018 for leave to apply for judicial review against the decision of the Board, well after the expiry of the three-month period for applying for leave to bring judicial review.  His grounds for his intended challenge may be summarized as follows:

(1)  the hearing bundle was given to him only six days before the appeal hearing so he did not have sufficient time to prepare his case.  The contents of the hearing bundle are in English and he was unrepresented and unable to obtain interpreter service;

(2)  he was confused at the appeal hearing; and

(3)  the adjudicator had relied upon hearsay information and outdated material in relation to the Country of Origin Information (“COI”) as well as information which was not officially recognized.

The judge’s decision

10.  The applicant attended the hearing before DHCJ K W Lung on 24 May 2019.  At the hearing, the applicant confirmed that he had had a fair interview with the immigration officer and a fair hearing before the adjudicator.  He also confirmed that he understood the decisions of the Director, the hearing bundle as well as the decision of the Board which were explained to him by his wife.  He further submitted that he had no comments on the findings of the Board.

11.  The judge rejected the applicant’s grounds as they are either inconsistent with the applicant’s oral submissions at the hearing or without evidence in support.  The judge concluded that there is no reasonable chance of success in the intended judicial review and dismissed the leave application on 18 October 2019.

Grounds of intended appeal

12.  The applicant stated his grounds of appeal (which are similar to the grounds he raised at the court below) in his written submissions which may be summarized as follows:

(1)  The applicant’s case has not been determined fairly;

(2)  There should have been a proper and fair mechanism that allows unrepresented litigants to understand more about their claims;

(3)  The applicant has not been provided with proper legal and language assistance.  The determination of the appeal has not been read to him in his own language;

(4)  The authorities should take into account the real procedural unfairness throughout the case and to put aside the public policies of trying to dispose of non-refoulement claims as quickly as possible.  The discriminatory act of authorities towards non-refoulement claimants is unacceptable and detrimental to the spirit of the judicial system;

(5)  He has not been informed fully of his rights.

Analysis and disposition

13.  In considering whether to extend time for appealing 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.

14.  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 18 October 2019.  The applicant took out a summons at the court below on 12 June 2020.  He was late by more than seven months.  The delay is substantial.

15.  The applicant offered no explanation for his delay.  As the 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.

16.  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.

17.  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.

18.  As for the ground relating to the lack of legal representation, the applicant already had the benefit of legal representation in presenting his case to the Director.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[7].

19.  As for the ground pertaining to the lack of language assistance, interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by duty lawyer.  The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: Re Gurung Sagar [2019] HKCA 658.  Furthermore, the applicant had previously confirmed before the judge that he understood the decisions of the Director, the hearing bundle as well as the decision of the Board which were explained to him by his wife.

20.  The rest of the grounds are just bare assertions without basis or merits.  In particular, he failed to demonstrate that the judge was wrong in refusing his leave application.  He also failed to adduce any evidence to refute the Board’s findings against him.

21.  As there is no prospect of success in his intended appeal, we refuse to extend time to appeal against the judge’s decision of 18 October 2019 and dismiss the summons filed on 29 December 2020.