RE SHAFI KAMRAN

CAMP 320/2021

[2022] HKCA 123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 320 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1906 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 15 July 2020[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 20 August 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 28 February 2018 rejecting the applicant’s non-refoulement claim.

2.  On 19 July 2021, the Judge refused to extend time for the applicant to appeal against his decision of 15 July 2020.[2]

Background

3.  The applicant is a Pakistani national born in 1977. He entered Hong Kong on 16 May 2015 and was arrested by police on 17 May 2015 on suspicion of being an illegal immigrant. He lodged his non-refoulement claim on 20 May 2015.

4.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by Taliban, Al-Qaeda or Daesh (i.e. ISIS) agents, because his identity or work as a police informer, working undercover at the Taleban and Al-Qaeda organisations, had been exposed. He said these agents had very strong connections with the Pakistani police and authorities and would be able to find him wherever he went in Pakistan. The detailed background of the applicant’s claim was set out at [13] to [36] of the Board’s decision.

5.  By notice of decision dated 28 February 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The applicable grounds are BOR 3 risk,[3] persecution risk,[4] torture risk[5] and BOR 2 risk.[6]

6.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 16 July 2018, during which the applicant gave oral testimony and answered questions from the Board with the assistance of a Punjabi language interpreter. The Board was not satisfied that his claims were truthful, as his oral evidence at the Board hearing differed considerably from the information in his non-refoulement claim form and his screening interview. The Board had put those inconsistencies to the applicant at the hearing, but the applicant was unable to give any satisfactory explanation. Because of the significant inconsistencies in the evidence, lack of credibility of the claims and a complete lack of documentary evidence, the Board did not accept that the applicant was ever involved with the Taliban or that Taliban, Al-Qaeda or Daesh had any adverse interest in him, or that there was any real chance he will be targeted by any of those groups if he were to return to Pakistan. The Board found that the applicant had fabricated his claims in order to apply for non-refoulement protection and extend his stay in Hong Kong.

7.  Accordingly the Board concluded that there was no real risk of harm in the event of refoulement, and dismissed the applicant’s appeal on 20 August 2018 in relation to all applicable grounds.

The Judge’s decisions in the court below

8.  On 11 September 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In his supporting affirmation, he recounted the procedural history and complained about the lack of language assistance, as summarized by the Judge at [12] of the Form CALL-1:

“ 12. In his affirmation in support of his application, he relied upon the grounds below for his appeal:

1. The hearing bundle was not read to him and he does not understand English.

2. There was no language assistance for him for his appeal to the Board. The Board’s Decision was not translated to him. He did not understand the reasons why the Board refused his appeal.”

9.  Following a hearing on 27 December 2019 attended by the applicant, on 15 July 2020 the Judge refused to grant leave to apply for judicial review. The reasons were set out at [13] – [20] of the Form CALL-1 as follows:

“ 13. The applicant appeared before me. He confirmed that he was treated fairly before the immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decision to him and his friend had explained the Board’s Decision to him.

14. The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.

15. His grounds are obviously inconsistent with his evidence before me. The Director’s Decision, which is in the hearing bundle and the most important document had been explained to him by his lawyer.

16. Since the Board rejected his evidence, he has no factual basis in support of his claim.

17. I asked him to comment on the Board’s findings. He said that his family was in danger as Taliban had captured them and demanded ransom for their release. However, these reasons seem not to be supportive for his application for asylum in Hong Kong.

18. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

19. There is nothing that shows that the Board’s analysis was in error.

20. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

10.  On 1 September 2020, the applicant took out a summons in the Court of First Instance to seek an extension of time to appeal against the Judge’s decision. In his summons and supporting affirmation, the applicant explained that his application was late due to lack of knowledge and insufficient “sources”.

11.  The Judge determined the application on paper without an oral hearing. In his decision dated 19 July 2021, the Judge dismissed the summons for the reason that the applicant could not show any reasonable prospect of success in the intended appeal.

The renewed application before this Court

12.  On 5 August 2021, the applicant took out a summons seeking an extension of time from this Court to appeal against the Judge’s refusal to grant leave for judicial review. In the summons and accompanying affirmation, he stated that the court and the Board rejected his case based on inadequate understanding of the local context in his country, and that he was confused by the service on him of the Judge’s decisions of 15 July 2020 and 19 July 2021.

13.  The applicant lodged his written submissions on 19 August 2021, in which he submitted that Pakistan is fraught with problems on human rights issues, that the police in Pakistan are corrupt and ineffective, and that the Pakistani government has failed to ensure legal redress for human rights violations. He also submitted that the Board relied on country of origin information without understanding the cultural context in Pakistan or the pattern of impunity for human rights violations, enforced disappearances and extrajudicial killings.

14.  Further, the applicant submitted that the communal nature of Pakistan as a Muslim country makes it very easy to track down a person. He reiterated that his family had been captured by a terrorist group and that the captors demanded ransom for their release. The applicant also reiterated that his background with the government constitutes an extreme risk, but his risk was dismissed lightly (by the Board). In addition, he suggested that the Board’s decision may be unreasonable depending on how knowledgeable they were about the country of origin, and that given the low rate of success for non-refoulement claims, there may “perhaps” be institutionalized bias which needs to be investigated to see whether the Board’s process may be unconstitutional. He stated that although he answered the Judge that he had been treated fairly by the Board, that did not mean that the assessment was fair.

Discussion

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless an extension of time is granted by the Court of First Instance or by this Court. 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 intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

16.  Disregarding the month of August 2020 which was the Summer vacation and not to be counted towards the time taken: see section 31 of the High Court Ordinance (Cap 4), the applicant’s application to the Judge for extension of time was only late by 3 days. Since the delay was short and the applicant was not legally represented, we have proceeded to decide the present application on the basis of the merits of the intended appeal.

17.  In assessing the merits, we have regard to the legal principles which this Court has adopted in dealing with appeals in 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]. In particular, the role of the Court in judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for disturbing the decision below, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

18.  In the present case, the Board rejected the applicant’s non-refoulement claim due to its adverse finding on the applicant’s credibility based on the numerous significant inconsistencies perceived by the Board in the applicant’s evidence. As such, the Board rejected the core contents of the applicant’s claim and found that there was no real risk of harm in the event of refoulement. These findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds.

19.  The applicant’s submissions in this application do not reveal any public law ground for impugning the Board’s decision. The applicant has signally failed to identify any relevant error in relation to the Board’s adverse finding on his credibility. The bald allegation that there may perhaps be institutionalized bias is unsubstantiated. Nor has the applicant shown any ground of appeal against the Judge’s decision to refuse leave for judicial review.

20.  Having considered the materials before us, we are of the view that the Judge’s observations are justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

21.  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 application is accordingly dismissed.