RE QASIM NADEEM

CAMP 266/2019

[2020] HKCA 593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 266 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 715 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 5 July 2019 (“the Decision”)[1], Deputy High Court Judge Bruno Chan (“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 16 March 2018.  In the Board’s decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 7 November 2017 rejecting the applicant’s non - refoulement claim.

2.  On 22 July 2019, the applicant took out a summons for an extension of time to appeal against the Decision.  On 14 October 2019, the Judge refused to grant leave for the applicant to appeal against the Decision (“the Leave Decision”)[2].

3.  By a summons dated 14 October 2019, the applicant sought leave from this Court to appeal against the Leave Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 22 October and 8 November 2019, the applicant was directed to lodge his written submissions in support of his summons on or before 26 November 2019.  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 in or about September 2014 and was arrested by the police on 8 May 2015.  He was then transferred to the Immigration Department for investigation.  On 10 May 2015, he lodged his non-refoulement claim by way of written representation on the basis that if he were to return to Pakistan, he would be harmed or killed by his uncles due to a land dispute.  The factual background was succinctly summarized by the Judge at the Decision at [1] to [6].

7.  By Notice of Decision of 7 November 2017 (“the Director’s Decision”), the Director assessed the applicant’s claim on all applicable grounds and determined them against him.  The Director’s Decision 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 the hearing on 9 March 2018, the Board dismissed the appeal on 16 March 2018.  For the reasons and analysis stated in [28] to [33] of the Board’s decision, the Board found there were inconsistencies and discrepancies in the applicant’s account of his family’s land dispute and that he was even unable to accurately recall basic matters such as how many uncles he has, the location of the first attack, and whether there was any rifles or pistols carried by the attackers.  As such, the Board did not find him a credible witness and rejected his claims that he and his family had a dispute with his uncles over their land, or that any of his uncles had assaulted him or his brothers, or that he came to Hong Kong out of fear of harm from his uncles.  The Board concluded that he had fabricated these claims so as to create a case to apply for non - refoulement protection claim and his claim was rejected on all applicable grounds. 

9.  On 24 April 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.  He advanced the following grounds for his intended challenge:

(1)  the Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2)  their decisions were not reasonable or fair as required by the Wednesbury test;

(3)  they failed to take into consideration that his right to life must be protected from extra-judicial killings which he may face if deported to Pakistan; and

(4)  the Adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence in support of his non-refoulement claim as well as his appeal.

The Judge’s decisions

10.  The Judge heard the case on 17 April 2019.  By his Decision made on 5 July 2019, he refused leave for the applicant to apply for judicial review, after giving due consideration to the Director’s and Board’s decisions.  The reasons were set out at [13] to [17] of the Decision:

“13. These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case, or how the Director or the adjudicator had erred in their decision, or in what way were their decisions unfair or unreasonable, or why were extra-judicial killings relevant to his claim, or how did the adjudicator fail to give him sufficient time or opportunity to provide his evidence for his claim or appeal. None of these assertions were elaborated or presented with any particulars or specifics by the applicant. In fact, even now he did not produce any further evidence which he claimed not to have been given the time or opportunity to do by the adjudicator, nor did he do so at the hearing of his application before me other than just repeating his claim of still having problems back home and that he did not want to leave Hong Kong. In the circumstances I do not find any basis or merits in these grounds or that any of them is reasonably arguable for his intended challenge.

14. As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. In the applicant’s case, the Board rejected his claim on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 33 of its decision after having had the benefit of hearing him in his evidence and answers to questions raised of his claim, and in the absence of any legal error or procedural unfairness being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16. Furthermore, even if his claim of threats resulted from the dispute with his uncles were true, the fact that it has been established by the Director in his decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.”

11.  The 14-day period for the applicant to appeal the Decision of the Judge, as stipulated by Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), expired on 19 July 2019.   On 22 July 2019, the applicant filed a summons together with supporting affirmation to apply for leave to appeal out of time. 

12.  The summons was heard on 27 August 2019 and by the Leave Decision made on 14 October 2019, the Judge refused the application for leave to appeal out of time and dismissed the summons.  The Judge found that the applicant’s delay of three days was insignificant.  The applicant explained at the hearing that 19 July 2019 was a Friday, and when he was unable to meet that deadline, he had to wait until the following Monday which was 22 July 2019 to do so, hence the 3 days’ delay.  The Judge accepted his explanation.  

13.  The Judge then focused on the more important issue i.e. the prospect of his intended appeal.  As the applicant failed to provide any draft or proposed grounds of appeal in his summons or supporting affirmation, or pointed to any error in the Decision, or why it may be argued that the Decision was unfair or unreasonable, the Judge did not see any arguable basis to challenge the Decision or any prospect of success in his intended appeal and thus dismissed the summons. 

The renewed application

14.  On 21 October 2019, the applicant filed a summons seeking leave to appeal against the Leave Decision.

15.  The applicant did not provide any draft or proposed grounds of appeal in the summons or his supporting affirmation except to explain for his delay again (which was accepted and excused by the Judge in the Leave Decision).  

16.  In his written submissions, he complained that it was not fair that the decision on his out of time application focused on the issue of merit and his case, which was about his personal life and death, should be allowed to be heard in the court and value consideration.  He urged the court to consider his case upon humanitarian principles and granted his application.

Legal principles

17.  As rightly out pointed in 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 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 substantive decision of out of time.

18.  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.

19.  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. 

20.  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

21.  Notwithstanding we take the same view as the Judge that the delay was minimal and might be excused, we do not find any merit in the applicant’s case.  The applicant had failed to provide any grounds of appeal in his documents pinpointing any error of law or procedural unfairness or irregularities in the Judge’s decisions.  None of the things set out in his written submissions can be regarded as viable grounds of appeal.

22.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection on the issue of credibility and his case was totally rejected as the Board found that he had fabricated his case for the purpose of raising the non-refoulement claim.  As explained, such a finding is within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

23.  We are satisfied that the Judge had examined the Board’s decision with vigorous examination and anxious scrutiny and that his intended application for judicial review was rightly refused.

24.  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 14 October 2019 is dismissed accordingly.

25.  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 1351

[2] [2019] HKCFI 2429

[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].