RAZA ASIF v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

CA MP60/2019

[2019] HKCA 723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 60 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 742 OF 2017)

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J U D G M E N T

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

1.  On 25 July 2018, Deputy High Court Judge Woodcock refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1].

2.  On 2 April 2019, Deputy High Court Judge Bruno Chan refused to grant leave to appeal against the said decision of the judge out of time as there is no prospect of success in the intended appeal^[2].

3.  The applicant now renews his application before the Court of Appeal for an extension of time to appeal against the decision of Deputy High Court Judge Woodcock.

4.  The applicant is a national of Pakistan who was refused permission to enter Hong Kong on 24 August 2011.  He lodged a torture claim on that day which was refused on 21 December 2011 because he failed to provide a completed questionnaire.  He lodged a non‑refoulement claim on 5 March 2014 on the basis that if he were to be refouled to Pakistan, he would be harmed or killed by people from the Ehl‑Sunnat who were Sunni Muslim.  They were unhappy that the applicant converted from Sunni Muslim to Ahmadi.  According to the applicant, he was threatened and assaulted.  There was a bomb attack on the Ahmadi mosque and some men even tried to shoot him with guns. 

The Director’s decision

5.  By a Notice of Decision dated 12 August 2016, the Director rejected the applicant’s non-refoulement claim.  The decision covered torture risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

6.  By a notice of further decision dated 23 June 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including BOR 2 risk^[6].

The Board’s decision

7.  The applicant appeared with his lawyer at the hearing of the appeal against the Director’s decisions on 4 September 2017 before the Board.  The Board found that the applicant was not a credible witness and considered that there is no real risk the applicant will face proscribed harm from Sunni Muslims and/or anti-Ahmadi militant groups if the applicant is refouled to Pakistan.  The Board dismissed the appeal on 21 September 2017.

The intended application for judicial review

8.  The applicant filed a Form 86 and an affirmation on 9 October 2017 to seek leave to apply for judicial review against the decisions of the Director and the Board.

The judge’s decision

9.  The hearing before Deputy High Court Judge Woodcock was scheduled to be held on 8 March 2018.  The applicant was absent at the hearing and there was no answer when calls were made to the mobile phone number supplied by the applicant.  The judge therefore proceeded to consider the application on paper. 

10.  The judge considered both the decisions of the Director and the adjudicator to be without fault.  She held that there was no substance in the grounds of the intended application for judicial review.  She refused to grant the leave application on 25 July 2018.

Grounds of appeal

11.  In his written submissions, the applicant stated the following grounds of appeal for his intended appeal against the judge’s decision:

(1)   the judge failed to adhere to a high standard of fairness in making sufficient enquiry into the Board’s decision;

(2)   the judge did not take into consideration the errors in the Board’s decision.

Analysis

12.  In considering whether to extend time to appeal against a decision refusing leave to apply for judicial review, the court will take into account these factors: (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.

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal against the judge’s order refusing leave to the Court of Appeal within 14 days after such order.  The judge’s order was made on 25 July 2018.  He took out a summons in the court below on 24 October 2018 to apply for leave to appeal out of time.  He was late by about 1.5 months (exclusive of the summer vacation of the court)[7]. Such delay is substantial. 

14.  In his written submissions, he explained that he did not receive the decision from the court.  He was only told by the Immigration officer upon reporting recognizance that his case had been concluded so he did not lodge his appeal within time. 

15.  It is the duty of a litigant to give the court an address to which documents in the litigation may be sent such that they may be brought to his attention in a timely manner.  The consequence of any delay occasioned by an incomplete or incorrect address would fall on the shoulder of the litigant^[8].  We find the applicant’s reason for the delay inexcusable.  In these circumstances, the court would examine if he has a good prospect of success in the intended appeal^[9].

16.  In assessing the merit of the intended appeal, the court would adopt the following legal principles in dealing with appeals of non‑refoulement cases^[10]:

(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 Country of Origin information (“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.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had 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.

17.  The applicant’s ground for judicial review is that the Director and the adjudicator had failed to consider the extended concept of state acquiescence. According to Re Moshsin Ali^[11],the applicant cannot seek judicial review of the Director’s decision.  As for the decision of the adjudicator, it was not necessary for the adjudicator to go into the extended concept of state acquiescence as he found that the applicant was not credible.  Having considered the papers and the applicant’s ground with care, the judge did not find any error in the Board’s decision.

18.  Having perused the papers and the written submissions of the applicant, we do not accept that the judge had made any errors of law or had failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  None of the grounds of appeal raised by the applicant are viable for reversing the decision of the judge.

19.  For the above reasons, the intended appeal does not have any prospect of success.  As this requirement is not met, it is unnecessary to consider the question of prejudice to the respondent.  The application for leave to appeal out of time should be dismissed.

Disposition

20.  We dismiss the summons filed on 4 April 2019 for leave to appeal out of time.  As the renewed application is entirely without merit, we make a further order under Order 59 rule 2A(8) of the Rules of the High Court that no party may under rule 2A(7) request the determination to be considered at an oral hearing inter partes.