RE ALI RAFAQAT

CAMP 253/2020

[2021] HKCA 1221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 253 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1419 OF 2018)

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J U D G M E N T

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The Court:

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 2 June 2020 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 11 July 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 December 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 26 October 2015 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 29 October 2015.

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [1] to [10] of the CALL-1 Form.

4.  By a Notice of Decision dated 21 December 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 12 January 2018, the Board dismissed the appeal on 11 July 2018 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [43] of the Board’s Decision, the Board found that the applicant manufactured his claim. 

The judge’s decision

6.  The applicant filed a Form 86 on 19 July 2018 which contained no ground for seeking relief.

7.  In his affirmation in support of the leave application filed on 19 July 2018 and the additional submissions adduced at the hearing of his application, the applicant advanced the following grounds for judicial review, as summarized by the judge at [15] of the CALL-1 Form:

(1) that the Director and the Board failed to conduct inquiries from reliable sources and did not fully study the ground realities of the applicant’s case and the aftermath that he was forced to return to his home country;

(2) that the Director and the Board just refused the applicant’s claim without any reasonable ground;

(3) that the Director and the Board failed to recognize that in the light of new law, relocation is practicably impossible due to the fight against terrorism and that state protection is non-existence, and that their decisions betrayed a biased and formula approach and unfairly assess the danger of life;

(4) that the Board failed to examine or give sufficient weight to the extended concept of state acquiescence;

(5) that the Board quoted different sources to conclude that the Pakistan government has taken practical steps to protect the right of its citizens and to improve the effectiveness of its police force which were mere speculations;

(6) that the Board failed to obtain high standards of fairness required by the Wednesbury test as the applicant was not legally represented; and

(7) that the Board failed to make sufficient enquiry before finalizing the decision in which the applicant was not advised to obtain medical reports from Pakistan authorities when deciding on the seriousness of his injuries.

8.  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 grant leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [16] to [21] of the CALL-1 Form:

“16. These are however all just broad and vague assertions of the Applicant containing several pages of 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 decisions, or what relevancy was the concept of state acquiescence to his claim, or in what way did the Director or the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standards of fairness in their assessment of his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

17. As has been repeatedly emphasized by the Court of Appeal, 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.

18. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 34 – 44 of its decision and with the benefit of hearing him in his oral evidence and answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the finding of the Board.

19. Furthermore, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

20. 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.

21. 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 to appeal and grounds for appeal

9.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 6 August 2020, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 19 November 2020.

10.  By a summons filed on 23 December 2020, the applicant renewed his application before this court.  In the summons he stated that:

“…I would like to inform court my life is danger in my origin country in Pakistan that’s why I am run from Pakistan reach in Hong Kong could you please save my life. From the order herein of [the judge] dated 2 June 2020…”

11.  In his affirmation of the same day filed in support of the application, the applicant deposed that:

“I am the applicant herein. In the order give to the court a more complete picture about my case I would like to adduce decision from [the judge]…”

12.  In his skeleton submissions dated 18 February 2021, the applicant submitted that:

“…I want to inform court my life is dangerous in my home country in Pakistan that’s why I am applying protection at Hong Kong I apply protection base on fear of my life in Pakistan no have peace and Justice in Pakistan Honestly I don’t have faith in Pakistani authorities that’s why I am requested to court and immigration department please save my life.

I am again beg to requested to Immigration Department and …High Court please save my life.”

13.  In the document entitled “Grounds On Which Relief Is Sought”, the applicant submitted that the Board erred by failing to hold an oral hearing.  He claimed that his delays were caused by the time the LAD needed to process his case and his acquiring relevant documents from the “DLS Cat Office and the Security Bureau”.  He advanced nine grounds of judicial review against the Board’s Decision, which are not directed towards an error in the decision by the judge and therefore not valid grounds of appeal.  We would therefore not reproduce any of the nine grounds here.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 rule 14A.

15.  We have considered the document entitled “Grounds On Which Relief Is Sought”.  The application referred to in this document was clearly an application for judicial review and not an application for extension of time to appeal, because it was expressed to be so and there was no reference to any of the judge’s decisions below.  It is also apparently a document taken from another application for judicial review, as the Board had in fact held a hearing on 12 January 2018 but the document claims that the Board failed to hold a hearing. We would therefore not give any weight to this document.

16.  We have considered the reasons for delay given by the applicant in the court below (as summarized by the judge in [4] of his decision on extension of time dated 19 November 2020).  Like the judge, we do not accept the applicant’s bare assertion that the mail enclosing the CALL-1 Form was not delivered or his claim that he only received the mail in early August 2020.  The two reasons advanced by the applicant for his delay are internally inconsistent and unbelievable.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

17.  The only ground of appeal set out in the Summons filed on 23 December 2020 is that it is unsafe for him to return.  The applicant did not identify any error on the part of the judge.  The applicant has therefore failed to advance any viable ground 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.  In any event, having examined the judge’s decision, we can see no error in it.

18.  As for the bare assertion by the applicant that it is unsafe for him to return, this is not itself a valid ground for judicial review or ground of appeal.  In any event, we note that the Board dismissed his claim for protection on the ground that he manufactured his claim ([43] of the Board’s Decision) and there is no public law error in the Board’s Decision.

19.  There is therefore no merit in the intended appeal and we dismiss the application accordingly.

20.  As the application is totally without merit, we make an order under Order 59 rule 2A(8) that no party may request this determination be reconsidered at an oral hearing inter partes.