RE AKHTAR WAHEED

CACV 361/2023, [2024] HKCA 554

On Appeal From [2023] HKCFI 2687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 361 OF 2023

(ON APPEAL FROM HCAL NO 1224 OF 2019)

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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):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 7 November 2023 ([2023] HKCFI 2687) (“the Leave Decision”) refusing to grant him extension of time and dismissing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (“the Board”) dated 5 March 2015, whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 December 2014.

2.  On 15 November 2023, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceeded to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of Pakistan.  He was arrested by the Hong Kong police on 11 January 2008 for illegal remaining.  On 20 January 2008, he raised a torture claim.  Upon the commencement of the unified screening mechanism, his torture claim was taken as a non‑refoulement claim and assessed on all applicable grounds.  His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle Samurd due to a land dispute. Details of the applicant’s claim were  summarised by the Judge at [4] ‑ [6] of the Leave Decision.

4.  By a Notice of Decision dated 30 December 2014 (“the Director’s 1^st Decision”) and a Notice of Further Decision dated 1 February 2017 (“the Director’s 2^nd Decision”), the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed the Director’s Decisions to the Board.  By the decisions respectively dated 5 March 2015 (“the Board’s 1^st Decision”) and 1 December 2017 (“the Board’s 2^nd Decision”), the Board dismissed the applicant’s appeals and confirmed the Director’s Decisions.  The Board’s reasons were summarised by the Judge at [10] ‑ [11] of the Leave Decision:

“10. The applicant first appealed the Director’s First Decision to the Board. He filed his notice of appeal/petition on 19 January 2015, which was around 4 days out of time. In his notice of appeal/petition, the applicant explained the delay that he lacked language assistance and hence the delay [4]. The Board refused to accept his explanation [5]. Nevertheless, it proceeded to consider the merits of the applicant’s appeal [6]. In gist, the Board found that the applicant was not seriously injured, that there was no government official involved and that it was just a private land dispute. In these premises, the Board was of the view that the chance of success in this appeal was extremely slim [8]. Meanwhile, since October 2007, the applicant had not met his uncle nor did his family in Hatian mention any fresh incidents of harassments or assaults from his uncle [9]-[10]. Therefore, on 5 March 2015, the Board refused to exercise its discretion to allow the applicant’s late filing of notice of appeal/petition against the Director’s First Decision (the ‘Board’s First Decision’).

11. Later, the applicant also filed a notice of appeal/petition against the Director’s Second Decision. By way of its decision dated 1 December 2017, the Board considered that, in absence of any additional information, the applicant failed to establish a personal and real risk of violation of his right to life and thus refused his claim on BOR 2 risk and dismissed his appeal (the ‘Board’s Second Decision’).”

THE JUDGE’S DECISION

6.  On 7 May 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s 1^st Decision.  The grounds in support of his application were summarised by the Judge at [13] of the Leave Decision:

“13. In his affirmation in support of this application, he set out the grounds as summarized below.

(i) No reasonable basis for rejecting his application.

(ii) Failure in considering the extended form of state acquiescence.

(iii) Failure in consider the COI relevant to his case.

(iv)  Irregularity: adjudicator is a different person; failure in placing weight on relevant information and wrongly placed weight on irrelevant information; failure in considering consistent pattern of human right violation; wrong considered that state protection would be available in Pakistan; no psychological or psychiatric reports; incorrect standards of proof.”

7.  As the applicant did not request for an oral hearing, the Judge considered his application on paper.  On 7 November 2023, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“14. As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 5 June 2015. The delay is almost 4 years. He has given no explanation for his delay and his application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

15. Role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …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.’

18. The Board, for the reasons it had given in the Board’s First Decision, did not accept the applicant’s explanations for his delay in filing his notice of appeal with the Board. The Board had also considered the merits of the applicant’s case for his appeal and, for the reasons given, found that he had failed to establish real risk of harm if he returned to Pakistan. For those reasons, the Board had refused the applicant’s application for extension of time for filing his notice of appeal.

19. The applicant had also sought to appeal the Director’s Second Decision refusing his BOR 2 risk to the Board. The Board, by its Decision dated 1 December 2017 and for the reason that he had failed to establish his claim on BOR 2 risk, rejected his appeal against the Director’s said Decision. He did not apply for leave for judicial review of the Board’s Second Decision. Even if he does so, his application is deemed to fail as he has failed in his claim in respect of BOR 3 risk.

20. The grounds in paragraph 13 are general or bare assertions or the applicant’s personal opinions without any evidence in support. I shall only deal with the relevant grounds. The fact that the adjudicator was a different person is not a ground of objection because the Board is a different body for re-considering the Director’s First Decision under the Ordinance. The Board did not make evaluation of the applicant’s psychology or psychiatric condition because the applicant had not made any complaint to the Board.

21.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.  Therefore, I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s First Decision. Accordingly, I dismiss his application.”

THIS APPEAL

8.  In his Notice of Appeal filed on 15 November 2023, the applicant only stated:

“THE HIGH COURT DID NOT CONSIDER MY JR. ADJUDICATOR DID NOT GIVE ME CORRECT DECISION. HIS DECISION IS FULL OF WRONG. PLEASE GRANT MY LEAVE.” (sic)

9.  Pursuant to the directions of the Registrar of Civil Appeals dated 15 November 2023, the applicant lodged his written submissions on 29 November 2023.  In those submissions, he reiterated the factual basis and procedural history of his non-refoulement claim.  He further claimed that the Judge did not consider his arguments and that he was not given any oral hearing.

DISCUSSION

10.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

11.  Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.

12.  In our view, the applicant’s case is a non-starter. At the outset, as the applicant did not request for any oral hearing before the Judge, it was open to the Judge to consider and determine his application for leave to apply for judicial review on paper.  He also had ample opportunities to make written submissions before the Judge.  His complaints that the Judge failed to give him an oral hearing to consider his arguments have no basis.  In any event, all his present allegations are bare, vague and general without specific particulars or evidence in support and do not constitute proper grounds of appeal.

13.  More importantly, the applicant fails to identify or show with specific particulars any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  None of his allegations are proper grounds of appeal.  In any event, we have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

14.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.