AZHAR HUSSAIN v. WESLEY WONG, ADJUDICATOR FOR PETITION TEAM OF SECURITY BUREAU

CACV 445/2020

[2021] HKCA 635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 445 OF 2020

(ON APPEAL FROM HCAL NO 856 OF 2018)

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J U D G M E N T

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Hon S T Poon J (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 31 August 2020 refusing to grant extension of time and dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the adjudicator (“Adjudicator”) dated 21 January 2011 dismissing the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 8 December 2010 rejecting his torture claim.

2.  The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3.  The applicant is a national of Pakistan.  He entered Hong Kong as a visitor on 30 March 2003.  He was arrested for overstaying on 14 January 2005 and was removed to Pakistan on 9 March 2005 after serving his sentence.  He entered Hong Kong illegally in 2007 and was arrested by the police on 2 October 2009.  He lodged a torture claim on 11 October 2009.

4.  The applicant’s claim was based on threats from a fellow villager known as Raja and other members of his home village.  His case was summarised by the Judge in [2]-[4] of the Form CALL-1^[1].  

5.  By his decision dated 8 December 2010 (“the Director’s Decision”), the Director decided against the applicant’s torture claim.

6.  The applicant appealed against the Director’s Decision by way of a petition to the Chief Executive.  Mr Wesley Wong (“Adjudicator”) was delegated with the power to determine his petition.  The Adjudicator dismissed the petition on 21 January 2011 (“Adjudicator’s Decision”).  Primarily, the Adjudicator found the applicant to be unreliable and internal relocation to Sargodha, Pakistan was viable.

7.  On 29 January 2018 and 15 February 2018, the applicant applied for a non-refoulement claim.  The Director treated the application as an application for a subsequent claim, as defined under section 37U(1) of the Immigration Ordinance, Cap 115.  The Director considered the material raised by the applicant and determined that there was no significant change of circumstances since his torture claim was determined.  The Director therefore dismissed the application under section 37ZO of the Immigration Ordinance, Cap 115.  

The Judge’s Decision

8.  The applicant filed a form 86 on 17 May 2018 against the Director’s Decision and the Adjudicator’s Decision.  The applicant did not give any ground for seeking relief in the Form 86. 

9.  In his affirmation in support of the leave application dated 16 May 2018, the applicant deposed that:

“My life is still dangerous in my country

So I need help High Court

Because I want apply judicial review

So I want stay Hong Kong thanks”.

10.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to give leave for judicial review.  The Judge gave the following reasons in refusing to extend time and leave to apply for judicial review at [9] to [16] of the Form CALL-1:

“9. By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that 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.

10. As the last day of the three-month period for the Applicant to file his Form 86 fell on 21 April 2011, he was therefore more than 7 years late with his application, and in considering whether to extend time, the court shall 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: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

11. In the Applicant’s case, a delay of more than 7 years must be considered as very substantial and excessive, for which he did not provide any explanation, and as the record shows that the Adjudicator’s decision was sent to the Applicant at his last reported address and had never been returned through undelivered mail, I am unable to see any good or valid reason for his such serious delay.

12. As for the merits of his intended application, as noted above the Applicant also failed to put forward any valid or proper ground for his intended application, and in the absence of any error of law or procedural unfairness in his process before the Adjudicator or in his decision being clearly and properly identified by the Applicant, I am unable to find any reasonably arguable basis for his intended challenge.

13. 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 Adjudicator where the evaluation of the risk of harm is primarily a matter for the Director and the Adjudicator 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.

14. Furthermore, the fact that it has been established by both the Director and the Adjudicator 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.

15. In the premises and having considered the decisions of both the Director and the Adjudicator 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.

16.  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.”

Appeal to Court of Appeal

12.  By a Notice of Appeal filed on 8 September 2020, the applicant appealed against the decisions of the Judge on the following grounds:

“The Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weight-age to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim.

The Applicant submits that the Director, the Adjudicator and the Court has failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

The Adjudicator failed to make sufficient enquiring before finalizing the determination. The Adjudicator stated that the applicant has failed to advice any credible evidence to prove material elements of his claim.

It is to be noted that the applicant is a torture-claimant who has no or limited options at his disposal to bring his evidence before the tribunal, and that to when he is in custody at the immigration detention centre. The adjudicator has failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.

Surprisingly, the director in his Decision while referring to relevant COIs. kept including meaning which suited his pre-conceived conclusion. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void.

In fact, the corruption and incompetence of the administration in Pakistan is still a very serious problem.  Various human rights organization has complied reports on the matter which stated testament [of] the applicant’s assertions.”

Skeleton Submissions

13.  The applicant failed to comply with the direction made by this Court on 14 January 2021 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.  

14.  The hearing date on 26 April 2021 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the Court.  

Discussion

15.  In the Notice of Appeal, the applicant identified a number of grounds related to alleged errors on the part of the Director and the Adjudicator, but do not relate to an error on the part of the Judge.  Those grounds are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

16.  The only ground of appeal related to an error on the part of the Judge is that the Judge failed to consider the error related to state acquiescence in the decisions by the Adjudicator and the Director.  The applicant did not give any particulars of this ground.  Further, this ground was never raised as a ground for judicial review before the court below.  It is thus not open to the applicant to raise this matter on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).  We would therefore give no weight to this ground.

17.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.