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

CAMP 115/2023, [2023] HKCA 782

On An Intended Appeal From [2022] HKCFI 900 &

[2022] HKCFI 3289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 115 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 918 OF 2019)

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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 22 March 2023, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court K W Lung (“the Judge”) dated 4 April 2022 (“the Order”) refusing to grant him leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 25 March 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 31 August 2018 rejecting the Applicant’s non-refoulement claim.

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 on 12 December 2015 and was arrested by the police on the same date. On 15 December 2015, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his uncle Fareed Khan because of a dispute over a plot of land which the Applicant’s father had inherited from the Applicant’s grandfather. Details of the Applicant’s claim have been summarised by the Judge at §§4-5 of the CALL-1 Form.

5.  By a Notice of Decision dated 31 August 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 25 March 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§8-11 of the CALL-1 Form, as follows:

“[8] Before the Board, the applicant indicated that he wished to adopt the existing information and there was nothing new to be supplemented. The Board informed him that it had queries that required clarifications and, without clarifications from the applicant, it would be unlikely to reverse the Director’s Decision. However, the applicant chose not to answer the Board’s questions [30].

[9] In this regards, the Board highlighted several material aspects of the applicant’s claim and expressed the difficulties in making any findings on these issues in relation to the applicant’s credibility. It then concluded that:

‘32…. The Appellant’s comments and responses to these issues would have allowed me to make findings as to his credibility. As those issues remain unresolved, I am not able to make findings in favor of the Appellant regarding the credibility of his claims to fear harm for reason of his land dispute with his uncle and therefore I do not accept his case as plausible. Particularly, as his own evidence is so inconclusive regarding his family continuing to farm the Land, but that the uncle has taken possession of the Land too.’ [sic]

[10] On the issues of the availabilities of state protection and internal relocation, the Board considered that the lack of clarifications from the applicant also prevented it from making any findings in favor of the applicant:

‘33… As those issues too remained unsolved, on the balance of the evidence before me I am not able to make findings in favour of the Appellant whether he faces a real risk of harm from uncle or supporters of the PML(N) as the Appellant may be able to access state protection and/or it may be reasonable for the Appellant to access internal relocation’ [sic]

[11] As a result, the Board found that, on the credible evidence, the applicant did not face any real risk of harm if refouled. For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.”

7.  On 4 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision and the Board’s Decision. In view of the fact that the Applicant had appealed the Director’s Decision to the Board and the Board’s Decision had superseded the Director’s Decision, the Judge amended the Form 86 so that the Board became the only Putative Respondent and the Director became the Putative Interested Party.

8.  In a document titled “Grounds on which Relief is sought” attached to the Form 86, the Applicant stated, inter alia, the following:

(1)  He believed that the Director and the Adjudicator of the Board reached their decisions wrongly in assessing his non-refoulement claim, and that their decisions were not reasonable and were unfair. He complained that the Adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence to support his non-refoulement claim and his appeal.

(2)  The Director failed to appreciate or give proper importance or weight to the presence of state acquiescence.

(3)  The Director failed to give enough weight to the relevant COI which supported his allegation that the police in his country would not be able to protect him.

(4)  There were serious problems of corruption and incompetence in the administration of his country. This was a case of unfair attitude shown by the Director which was enough to render his decision void. The Director failed to adopt a high standard of fairness as required by the Wednesbury test, and his decision was unreasonable in the public law sense.

THE JUDGE’S DECISION

9.  On 4 April 2022, the Judge refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[17] It is obvious that the Board had drawn adverse inference on the applicant’s credibility for the reason that the applicant refused to answer its questions despite being warned that his decision might make it difficult for the Board to overturn the Director’s Decision. On the issue of whether the Board can draw adverse inference against the applicant, resulting in discrediting his evidence as a whole, there are a number of authorities for consideration.

[18] However, he has set out his grounds in an attachment to Form 86, which I shall summarize below. He referred to the Director. I shall take it as referring to the Board…

…

[20] The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim. See section 37ZA (1)(a). As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. It is not difficult to understand the consequence of the Board not believing his evidence if he refused to answer the questions put by the Board to him. In my view, high standards of fairness give no exemption to the applicant for the compliance of the Ordinance.

[21] Those grounds above do not assist him. Grounds (1), (3) and (4) are mainly his bare allegations without any evidence in support of them. As to the Board not giving him sufficient time to prepare the evidence, the applicant has not informed this Court what evidence he considered necessary to support his case. Ground (2) fails too because the facts of his case do not have state involvement, direct or indirect.

[22] I find that the applicant has no valid ground to challenge the Board’s Decision.

[23] 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.”

10.  On 10 October 2022, the Applicant applied by summons for an extension of time to appeal against the Order. On 17 November 2022, the Judge refused the application, holding that there was no realistic prospect of success in his intended appeal.

THIS APPLICATION

11.  By a summons taken out on 22 March 2023, the Applicant applied for an extension of time to appeal against the Order.

12.  In his written submissions dated 17 April 2023, the Applicant repeats his allegation that his life will be in danger in his home country; his enemies are still looking for him; they are rich and powerful, belong to a political party and have good connections with the police; and he cannot get justice in his home country.

DISCUSSION

13.  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.

14.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

15.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

16.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

17.  The Applicant has failed to identify or show any error in the Judge’s decision of 4 April 2022, and has failed to raise any viable ground of appeal against the Order.

18.  There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

19.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 22 March 2023 is dismissed.