RE MUHAMMAD ARFAN

CAMP 136/2021

[2021] HKCA 1730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 136 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 795 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

Introduction

1.  On 3 September 2020, by way of a decision (“the Deputy Judge’s Decision”)  set out in Form CALL-1 ([2020] HKCFI 2227), Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 27 April 2018 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 14 December 2016 (“the Director’s Decision”).

2.  The 14-day time period for the applicant to appeal the Deputy Judge’s Decision provided under Order 53, rule 3(4)  of the Rules of the High Court (Cap 4A)  (“the RHC”)  expired on 17 September 2020.  On 28 October 2020, the applicant sought extension of time before the Deputy Judge to appeal the Deputy Judge’s Decision.  He was more than one month out of time.

3.  On 8 April 2021, the Deputy Judge refused to grant extension of time to the applicant (“the Extension of Time Decision”).

4.  By a summons dated 30 April 2021 (“the CA Summons”), the applicant renewed his application to appeal out of time before this Court.  Under Order 59, rule 14A(1)  of the RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  Directions were given by the Registrar of Civil Appeals to the applicant on 3 June 2021 concerning the conduct of the application.  Paragraph 6 of those directions also stipulated that upon consideration of the documents lodged, the Court will decide whether to determine the application on the paper.  After considering the documents filed, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The applicant is a national of Pakistan.  He came to Hong Kong illegally on 28 February 2008 and was arrested by the police on 29 June 2008.  He lodged a torture claim on 2 July 2008, which was subsequently converted to a non-refoulement claim upon the commencement of unified screening mechanism.

6.  The applicant’s personal background and his claim were summarized at paragraph 9 of the Director’s Decision and paragraphs 3 - 7 of the Board’s Decision.

7.  Briefly stated, the applicant claimed that he would be harmed or killed by Ishfaq and his relatives if he was returned to Pakistan.  The applicant stated that Ishfaq, who was closely affiliated with the powerful political group Pakistan Muslim League (Q), murdered his friend Sohail.  After Ishfaq was arrested and charged, his relatives threatened the applicant not to give evidence.  Ishfaq was subsequently convicted based on evidence other than that of the applicant’s testimony.  However, the applicant feared that Ishfaq’s relatives would still revenge.  Out of fear, he fled to Hong Kong for protection.  While he was in Hong Kong, he was informed that Ishfaq was released from jail after bribing the judge.

The Director’s Decision and the Board’s Decision

8.  By way of the Director’s Decision, the Director assessed and dismissed the applicant’s non-refoulement claims on the BOR3 risk[1], persecution risk[2], torture risk[3], and BOR2 risk[4].

9.  The applicant lodged an appeal to the Board against the Director’s Decision.  An oral hearing was held on 11 April 2018, during which the applicant was assisted by an interpreter and he answered inquiries from the Board.  After hearing the applicant, and considering his evidence in the non-refoulement claim form, the Board was not satisfied that the applicant had suffered any serious forms of attack from Ishfaq and his relatives.  It also found that this remained a private dispute and Ishfaq was unlikely to still have any interest in the applicant after some 21 years (paragraphs 20 - 22 of the Board’s Decision).  In any event, state protection and internal relocation were available to the applicant (paragraphs 23 - 30 of the Board’s Decision).  Thus, the Board dismissed the applicant’s appeal.

The Deputy Judge’s Decision

10.  On 7 May 2018, by way of a Form 86, the applicant sought leave to challenge the Board’s Decision.  The applicant failed to provide any grounds of review in either his Form 86 or supporting affirmation.  Neither did he request for an oral hearing.  On 18 May 2020, the applicant provided further documents to the court, including his written submissions for the purpose of the leave application.  The grounds therein were summarized by the Deputy Judge at paragraph 13 of the Deputy Judge’s Decisions as follows:

“13. On 7 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the decisions of the Director and the Board, and in his written submission dated 18 May 2020 he put forward the following grounds for his intended challenge:

(a)  that the Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which had led to an unfair outcome of rejecting his non-refoulement claim;

(b)  that the Director failed to take into account or give sufficient weight to the fact that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies which was the misconduct of police officials that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(c)  that the Director had failed to consider or give sufficient weight to his listed relevant COI which supported the Applicant’s aversions that the police in Pakistan would not be able to protect;

(d)  that the Director referred to COI which suited his pre-conceived conclusion which is a clear case of unfair attitude which would render his decision void;

(e)  that the Director failed to take into account of the fact that corruption and incompetency of the administration in Pakistan were still very serious problems of which various human rights organization had compiled reports which stated testament to the Applicant’s assertions;

(f)  that the Director failed to attain high standard of fairness required by the Wednesbury test in his decision which should be considered as unreasonable in the scope of public law;

(g)  that the adjudicator failed to make sufficient enquiry before finalizing the determination; and

(h)  that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.”

11.  After considering the documents, the Deputy Judge refused to grant leave to him to apply for judicial review.  The Deputy Judge set out his reasons for refusal at [14] - [18] of the Deputy Judge’s Decision:

“14. 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 why would state acquiescence be relevant to his claim, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standard of fairness in their assessment of his claim, or how did the adjudicator fail to give him sufficient opportunity to provide relevant evidence in support of his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and that many of them appear to be standard pro forma grounds commonly used in this type of cases but not at all relevant to his claim. As such and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find any of his grounds reasonably arguable for his intended challenge.

15. 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.

16. In the Applicant’s case, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s 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.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Application for extension of time

12.  On 28 October 2020, the applicant took out a summons to seek extension of time to appeal the Deputy Judge’s Decision.  By way of the Extension of Time Decision, the Deputy Judge dismissed the applicant’s application on the basis that he failed to provide any good reason for the delay and that his intended appeal had no prospect of success.  Thus, the Deputy Judge concluded that it would be futile to extend time.

Renewed application for extension of time to this Court

13.  On 30 April 2021, the applicant renewed the application for extension of time to appeal the Deputy Judge’s Decision before this Court.  In the CA Summons and his supporting affirmation, the applicant merely stated that he wanted to challenge the Deputy Judge’s Decision and asked for an extension of time.  In his written submissions of 17 June 2021, he cited cases on the principle of high standard of fairness and submitted that the Board did not properly assess his credibility.  He also cited cases on the principle of Wednesbury unreasonableness but failed to elaborate on how it was relevant to his application.  Further, he cited section 37ZT of the Immigration Ordinance about the late filing of the notice of appeal.  None of these identified any errors in the Deputy Judge’s Decision.

Legal principles

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of the intended appeal; and (d)  the prejudice to the respondent if an extension of time were granted.

15.  Even if the court accepts that the applicant’s explanation for delay is reasonable, an applicant still has to show that the appeal has a reasonable prospect of success before extension of time will be considered.  When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; Re Muhammad Shehbaz [2020] HKCA 256.

16.  In this respect, 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 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]. For the purpose of this application, the principles can be summarised 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 the 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)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new arguments, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  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 decision of 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 RHC.

Discussion

17.  A delay of more than a month is significant in the context of a statutory time limit of 14 days. The applicant failed to provide any cogent explanation for the delay.  Further, as mentioned at [13] above, the applicant simply failed to advance any grounds of appeal with particularities pointing out any errors in the Deputy Judge’s Decision.  Hence, there are no viable grounds of appeal, and no merits in the intended appeal.  It would be futile to extend time.  We therefore dismiss the CA Summons.