RE AKRAM MUHAMMAD

CACV 59/2022

[2022] HKCA 445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 59 OF 2022

(ON APPEAL FROM HCAL NO. 2462 of 2020)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 19 January 2022[1] refusing to extend his time to apply for judicial review and dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 26 October 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 24 July 2015 and 7 December 2016 rejecting his non-refoulement claim.

2.  The applicant has consented to the appeal being dealt with on the papers without an oral hearing. Despite directions given by the Registrar of Civil Appeals, he has not put in any written submission to support his appeal.

3.  The applicant is a national of Pakistan aged 35. He entered Hong Kong illegally and was arrested by the police on 10 February 2009. He raised a torture claim on 13 February 2009, which was taken forward as a non-refoulement claim upon the commencement of the unified screening mechanism in March 2014. The applicant’s claim is based on his fear of being harmed or killed by his neighbour, Ijaz, and his people arising out of a land dispute. His claim was set out in detail in the Director’s first decision at [20] and the Board’s decision at [25] to [37], and summarised by the Judge in [1] to [4] of the Form CALL-1.

4.  In gist, the applicant claims that Ijaz wanted to buy the land belonging to the applicant’s family since the 2000s. When his offer was rejected, he used different ways to prevent the applicant’s family from cultivating the land and destroy the crops. During a confrontation with Ijaz in October 2008, the applicant accidentally wounded him. Thereafter, Ijaz looked for the applicant and made death threats. To avoid Ijaz, and fearing for his personal safety, the applicant went to Lahore and fled to Mainland China from where he sneaked into Hong Kong.

5.  By his decision dated 24 July 2015, the Director rejected the applicant’s claim having regard to the torture risk^[2], persecution risk^[3] and BOR 3 risk^[4] grounds.

6.  The applicant appealed the Director’s decision to the Board. In the meantime, the Director issued his further decision dated 7 December 2016 which assessed the applicant’s claim under the BOR 2 risk^[5] ground and decided against it.

7.  The Board heard the applicant’s appeal at an oral hearing held on 3 August 2018 during which the applicant gave evidence and answered questions from the Board. By its decision dated 26 October 2018, the Board dismissed the appeal. In summary, the Board accepted the applicant had a land dispute and an argument with Ijaz, but doubted his evidence that Ijaz intended to kill him, having regard to the fact that Ijaz had stopped causing trouble to the applicant’s farmland for some time and also he had never inflicted any bodily harm on the applicant. The Board found, on the evidence, no basis to suggest the applicant may face a real or substantial risk of being subjected to ill-treatment or torture. The Board concluded that there is no evidence to satisfy the requirements under the applicable grounds, and that the applicant’s claim to non-refoulement protection was not made out.

8.  Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. The time for the applicant to apply for leave to judicially review the Board’s decision expired on 26 January 2019.

9.  On 21 December 2020, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision. He was by then out of time for 23 months. He did not give any explanation for his long delay.

10.  The applicant did not request an oral hearing. The Judge dealt with the application on the paper. He set out the applicant’s grounds for the application in [11] and gave his reasons for dismissing the application at [14] to [19] of the Form CALL-1 as follows:

“11. On 18 December 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision in which he merely stated that the Board reached the decision wrongly in assessing his non-refoulement claim and that it was not reasonable or fair, and in his subsequent written submissions he provided further elaborations in support of his complaints as follows:

(1) That the decision was unfair and unreasonable in assessing his non-refoulement claim in that it failed to properly consider his right to life under BOR 2 and he should be protected from extra-judicial killing that he may face if deported to his home country;

(2) That it was a situation of unjust attitude displayed by the decision which is sufficient to render it null and void as various human rights organizations have produced reports that supported matters raised in his claim but which the decision failed to take into account which is by itself a failure of the Board to attain high standards of fairness in its consideration of the Applicant’s claim.”

“14. In the Applicant’s case, a delay of almost 23 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation, and as he made no request for oral hearing for his application, I fail to see any good or valid reason for his such serious delay.

15. As for the merits, if any, of his intended application, as noted above the Applicant has merely put forth some vague and bare assertions without any proper details or elaborations as to how they apply to his case or what relevancy would extra-judicial killings or human rights issue be to his claim which was on his own case just a private land dispute between his neighbour and his family without any evidence of official involvement and as correctly found by both the Director and the Board that there was no evidence or basis of any of the proscribed risks under any of the applicable grounds. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application.

16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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.

17. In the Applicant’s case, the fact is that it has been established by the Director in his decisions 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, decisions also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18. 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.

19. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

11.  The applicant filed the notice of appeal on 31 January 2022. It stated that the Judge’s decision was reached unfairly without giving the applicant the opportunity to clarify his case and the situation in his country. It further set out the following grounds of appeal:

(1) The delay in the filing of the Form 86 was due to the fact that the applicant was detained in prison and did not have the financial means to pay for the filing of the Form 86. Also for reasons unknown, the welfare officers at the prison was reluctant to help him file the Form 86.

(2) To fulfil his duty of making prompt and full discovery of all relevant facts, the applicant wished to provide an update, namely, his father has transferred the ownership of the disputed land to him to become the sole proprietor of it. Further, his family has since 2008 not resided in the same village due to the conflict with Ijaz. The applicant has been told by his family that they are still being threatened by Ijaz. The applicant believes the conflict will escalate upon his return especially if it is found out that he is now the sole proprietor of the land.

(3) The standard of proof that the applicant has to discharge is not high. He needs only to prove that there are substantial grounds for believing that if he was returned to his country he would be in danger of being subjected to torture, and that the grounds for so believing are substantial, going beyond theory or suspicion, and that such danger is clear and present.

(4) Based on the principles in ST v Betty Kwan [2014] 4 HKLRD 277, an oral hearing should have been conducted to allow the applicant to supplement his case and to provide any further evidence. Previously, the applicant had attended all scheduled screening interviews. He asked that leave to apply for judicial review be granted so that he could present his case properly to the court.

12.  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]. Among them, the following are of particular relevance to this appeal:

(1) The primary decision makers in relation to a claim for non-refoulement are the Director and the Board. They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

(2) The role of the court in a judicial review is not to provide a further avenue of appeal. Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board. 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 and/or the process by which the decision was made.

(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.

13.  In light of the established legal principles set out above, we are of the view that the arguments put forward by the applicant do not constitute viable grounds of appeal. Our reasons are as below.

14.  As the Judge correctly pointed out in [13] of the Form CALL-1, in considering whether to extend time for applying for judicial review, the Court will have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration. The explanation for the delay now put forward in the Notice of Appeal should have been provided in the Form 86 and the supporting affirmation.

15.  In any event, the most important consideration is the merits of the intended application. The Judge was clearly aware of this as he proceeded correctly to consider the merits of the applicant’s intended judicial review after noting that no reason for the delay had been given by the applicant.

16.  Secondly, the new matters now raised by the applicant (see [11(2)] above) relate to the facts underlying his claim. Admittedly, they have not been provided to the Director or the Board. Neither have they been put before the Judge as they were not mentioned in the Form 86 or the supporting affirmation. The Court will not accept new evidence on an appeal unless the requirements in Ladd v Marshall [1954] 1 WLR 1489, [1954] EWCA Civ 1 are satisfied. In the present case, the applicant has not demonstrated how the legal requirements for adducing new evidence are met.

17.  Further and importantly, evaluation of evidence and assessment of risk of harm are matters for the Director and the Board, who are the primary decision makers. The Court may only review the findings made by the primary decision makers if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness. In the present appeal, the applicant has not advanced any substantive ground to challenge the findings of the Board, which was based on the information provided to the Director and evidence in the appeal before the Board. The new information that the applicant now puts forward to supplement his claim do not constitute proper grounds for judicial review or viable grounds of appeal.

18.  Thirdly, Order 53 rule 3(3) of the Rules of the High Court provides that a judge may determine an application for leave to apply for judicial review without a hearing, unless a hearing is requested in the notice of application. The applicant did not request an oral hearing in his Form 86 or supporting affirmation. The Judge was not obliged to hold an oral hearing for the application.

19.  The decision of ST v Betty Kwan, supra, relied on by the applicant, does not assist his appeal. The discussions of, and the principles set out by, the Court of Appeal on whether an oral hearing should be held (at [38] to [53]) were in the context of the determination of an appeal by the Board. As noted above, the Board is a primary decision-maker who has the responsibility of making assessment of credibility and finding of facts and determining whether an applicant may face risks of harm on return to his home country. Since the exercise of determining whether a claim was valid was one of “joint endeavour”, an oral hearing should be held if the high standards of fairness could not be fully satisfied. All these considerations, however, have no application to the determination of an application for leave to apply for judicial review by the Court of First Instance. This is because the Court’s role is not to determine the claim afresh or to make findings, but to scrutinise the primary decision-maker’s decision to see if there is any error of law, irrationality or procedural irregularity.

20.  Further, the ultimate question is one of fairness. In this appeal, the applicant has not pointed to any material matter that he would have raised with the Judge but was unable to do so without an oral hearing. As explained in [17] and [19] above, the new matters he now puts forward, even if they were put before the Judge, would not have assisted his application for leave to apply for judicial review. In short, it has not been shown that the determination of the applicant’s application without an oral hearing has resulted in unfairness or injustice to him.

21.  For the above reasons, we find no merits in the grounds of appeal set out in the Notice of Appeal. In any event, we have reviewed the Board’s decision and the Judge’s decision and the reasons they gave for their decisions. We agree with the Judge that the intended judicial review has no reasonable prospect of success, and that the time for the applicant to apply for judicial review should not be extended and the application for leave to apply judicial review should be refused. Accordingly, we dismiss the appeal.