KHAN MUHAMMAD SUFIAN v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 376/2022

[2022] HKCA 1824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 376 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 450 OF 2019)

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J U D G M E N T

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

1.  On 26 September 2022, the Applicant took out a summons to apply for an extension time to appeal against the order of Deputy High Court Judge To (“the Judge”) dated 27 April 2022 refusing to grant him leave to apply for judicial review (“the Order”).

2.  The intended judicial review was against (i) the decision of the Director of Immigration (“the Director”) dated 19 March 2018 rejecting the Applicant’s non-refoulement claim, and (ii) the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 13 February 2019 dismissing his appeal against the Director’s decision.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Pakistan. He claimed that he arrived in Hong Kong via the Mainland on 25 September 2015 when he was arrested in Hong Kong on that date. He was referred to the Immigration Department for investigation, and raised a non-refoulement claim on 28 September 2015. He alleged if he returned to Pakistan, he would be harmed or killed by members of the Pakistan Muslim League (Nawaz) for being a supporter of a rival party called the Pakistan Tehreek-e-Insaf. Details of the Applicant’s claim have been summarised by the Judge at §§1-11 of the CALL-1 Form ([2022] HKCFI 1200).

5.  By a Notice of Decision dated 19 March 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 13 February 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§12-18 of the CALL-1 Form, as follows:

“[12] The Board found that the supporting documents submitted by the Applicant are at odds and irreconcilable with the case as he asserted. He produced a medical certificate in support of the treatment he received as a result of the injury he suffered during the second assault. The document purports to have been issued by the Medical Superintendent of Allama Iqbal Memorial Hospital. Apart from the obviously unusual feature that it is not printed on a letterhead and does not show any contact details of the hospital or the signatory and the identity of the signatory, that hospital was not the same hospital as the one which the Applicant said he had been admitted to. It certifies that the Applicant has been examined ‘to day on Jun 2013’ but does not give the actual date. It is irreconcilable with the Applicant’s evidence that he had been admitted in May 2013. The injuries suffered by the Applicant as stated in the document were different from the injuries claimed to have been suffered by the Applicant. It certifies that the Applicant was admitted for 15 to 18 days and did not specify the actual length of hospitalisation. The Applicant was unable to explain these anomalies and excused himself because he was not mentally functioning properly.

[13] The particulars of the police complaint produced by the Applicant bear little or no resemblance to the claims set out in his NCF. It states, for example, that a group of PML(N) thugs came to the Applicant’s home, broke down the door and shot at him a number of times. These events had never been mentioned by the Applicant in his written claims. The Applicant’s initial explanation was that these events occurred after he had come to Hong Kong. However, the document stated that these events happened in June 2013 just after the election when the Applicant was in Sialkot, not Hong Kong. This document is irreconcilable with the Applicant’s case.

[14] After considering the Country of Origin Information (‘COI’) regarding the prevalence of document forgery in Pakistan and the Applicant’s explanation, the Board took the view that he was not a credible witness and dismissed his account in its entirety.

[15] The Board found the Applicant’s political knowledge is inconsistent with his claimed involvement. Contrary to the Applicant’s claims, the COI showed there was no relevant election held in Pakistan in December 2014 and that the name of the PTI candidate he allegedly supported and the name of the PML(Q) opponent are inconsistent with those shown in the COI.

[16] The Applicant’s political achievements do not match his claimed political profile and effectiveness as a campaigner, which is said to form the basis for his having become the target of his PML(N) opponents.

[17] Even if there is any truth at the core of the Applicant’s claim, the Board found the risk, if any, has been grossly exaggerated.

[18] In conclusion, the Board was not satisfied that the Applicant faces any real or substantial risk of being subjected to serious or significant harm for reason of his claimed political involvement if he returns to Pakistan in the reasonably foreseeable future. The Board found he had failed to discharge his burden of proving his entitlement to non-refoulement protection on any of the four applicable grounds under the USM and hence dismissed his appeal.”

7.  On 18 February 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision and the Board’s Decision. He did not give any grounds for judicial review in either the Form 86 or his supporting affirmation of the same date. In that affirmation, he exhibited a two-page document setting out his personal background, education, work experience, his journey to China, his arrest in Hong Kong, his application for non-refoulement protection and his danger if he returned to Pakistan.

THE JUDGE’S DECISION

8.  On 27 April 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review. The Judge first held that the Director’s Decision was not reviewable because there were established procedures of appeal against the Director’s Decision to the Board and the Applicant had invoked those procedures. The Director’s Decision had been superseded by the Board’s Decision and was no longer susceptible to judicial review. However, for the benefit of the Applicant, the Judge treated his complaints against the Director as if they were also directed at the Board. In respect of the intended judicial review of the Board’s Decision, the Judge held as follows:

“[20] In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country. His application is in substance an appeal against the finding of fact by the Board.

[21] The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration.

[22] Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant not credible and rejected his evidence in its entirety. He has therefore failed to prove the factual basis to support of his case. It was on that basis that the Board found that he has failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault.

[23] For the above reasons, the Applicant has no arguable grounds for judicial review. There is no realistic prospect of success in the proposed judicial review. Accordingly, leave to apply for judicial review was refused.”

9.  On 22 September 2022, the Judge refused the Applicant’s application by summons dated 15 July 2022 for an extension of time to appeal against the Order ([2022] HKCFI 2817).

THIS APPLICATION

10.  By a summons taken out on 26 September 2022, the Applicant applied to the Court of Appeal for an extension time to appeal against the Order. In the summons, the Applicant stated the following:

“The High Court dismissed my leave to apply for judicial review. I did not get any decision but the High [Court] did not give me chance to appeal. I do not agree with the High Court Judgment. Please permit me to appeal.”

11.  The Applicant repeated substantially the same matters in his affirmation filed on 26 September 2022 in support of the application. In his written submissions dated 12 October 2022, the Applicant stated that he faced life threat in his motherland, his problem was very serious, his enemy was very powerful, and the police would help his enemy because his enemy paid them “big amount”.

DISCUSSION

12.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

13.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.  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 of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

15.  Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

16.  The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 27 April 2022, and has failed to raise any viable ground of appeal against the Order.

17.  There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

18.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 26 September 2022 is dismissed.