RE REHAN ALI

CACV 551/2020

[2021] HKCA 673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 551 OF 2020

(ON APPEAL FROM HCAL NO. 1505 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 11 August 2020 in HCAL 1505/2018 refusing leave to the applicant to apply for judicial review against the decision of Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 15 June 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 15 February 2017.

2.  Pursuant to the directions of the Registrar of Civil Appeals given on 3 February 2021, the applicant shall lodge with the court 2 sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 7 April 2021 (due to Easter holidays).  Despite the court letter sent to the applicant on 4 February 2021 informing him of the said directions, he only filed his skeleton arguments on 27 April 2021 which was one week before the hearing.  In our view, the delay is substantial given the imminent hearing day fixed for 3 May 2021, in the absence of any good reason for the delay, we will not accept the late lodging of the skeleton arguments.  The Registrar further directed that in the event the applicant failed to lodge his skeleton arguments as directed, he shall be deemed to waive his right to have an oral hearing for this appeal.  As it is appropriate to do so, this Court will proceed to consider this appeal on paper. 

Background

3.  The Applicant is a national of Pakistan who entered Hong Kong illegally on 30 April 2013 and was arrested by police on 5 May 2013.  He was then referred to the Immigration Department for investigation.  On 3 June 2014, he raised a non-refoulement claim by way of written representation on the basis that if he returned to Pakistan he would be harmed or killed by his former girlfriend’s family who objected to their relationship.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1863. 

4.  By the Notice of Decision dated 15 February 2017, the Director decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

5.  On 20 February 2017 the applicant lodged an appeal to the Board against the Director’s decision, and for which he attended an oral hearing on 10 October 2017.  By its decision dated 15 June 2018, the Board dismissed the appeal.  For the reasons set out at [34] to [45] of the decision, the Board found serious inconsistencies and discrepancies in the applicant’s evidence and that he was not a witness of truth as he had fabricated claims in relation to being assaulted by his former girlfriend’s family and concluded that he was not of any interest to her girlfriend’s family nor that he would face any real risk of any proscribed harm upon his return to Pakistan.  For the aforesaid reasons, the applicant’s claim for non-refoulement protection failed on all applicable grounds.  

6.  On 30 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the decisions of both the Director and the Board, and put forward the following grounds for his intended challenge (as duly summarised by the Judge at [9] of the CALL-1 Form):

(1)  The Director and the Board reached their decisions wrongly and were not reasonable or fair.

(2)  The Board failed to give the applicant sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal.

(3)  The Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case which led to an unfair outcome of rejecting the applicant’s non-refoulement claim.

(4)  The Director failed to take into account that the applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies 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.

(5)  The Director failed to consider or give sufficient weight to those evidence in the listed COI which supported the applicant’s aversions that the police in his country would not be able to protect.

(6)  The Director only relied on COI which suited his pre-conceived conclusion which was a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void.

(7)  The Director failed to attain high standard of fairness required by the Wednesbury test in the decision in finding that corruption and incompetency of the administration in his country is still a very serious problem of which various human rights organization had compiled reports which stated testament to the applicant’s aversions.

(8)  The Board failed to make sufficient enquiry before finalizing the determination of his claim.

(9)  The Board failed to give sufficient chance to the applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.

The Judge’s decision

7.  The Judge heard the application on 21 May 2020 and by the CALL-1 Form dated 11 August 2020, the Judge refused to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [10] – [14] for his refusal to grant leave:

“10.  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 decisions, or in what way was state acquiescence relevant to his claim, or how did they to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way did they fail to conduct proper or sufficient enquiry or to apply high standard of fairness or fail to give him sufficient opportunity to provide relevant evidence in support of his claim or his appeal.  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.

11.  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.

12.  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 32 – 45 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

13.  Furthermore, the fact 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.

14.  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.”

Application for an extension of time to appeal 

8.  On 31 August 2020, the applicant took out a summons seeking an extension of time to appeal against that decision, as the 14-day period for him to file his appeal under Order 53, rule 3(4) of the Rules of High Court, Cap. 4A ended on 25 August 2020.  By the decision dated 29 September 2020[5], the Judge allowed the application.  The Judge took the view that a delay of 6 days was insignificant, for which the applicant explained in his affirmation that he did not receive the decision in the mail until 22 August 2020 and thus he did not have sufficient time to seek assistance with his application to appeal.  Given the impact of the current Covid-19 pandemic on the general postal service during the material time when it was in operation only 3 days per week, and also on the High Court Registry with reduced operation hours and limited people flow, the Judge accepted the applicant’s explanation for his insignificant delay and granted him an extension of time to file his appeal within 14 days from the date of the order made.

The Appeal

9.  On 12 October 2020 , the applicant filed his Notice of Appeal against the Judge’s decision dated 11 August 2020 on the following grounds:

“The Judge of the High Court totally follow the Adjudicator Decision, which is totally wrong. He should read my points and consider it.”

General Principles

10.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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 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)  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, 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 Rules of the High Court (Cap. 4A). 

Discussion

11.  The applicant had failed to provide any proper ground of appeal against the Judge’s decision and his appeal is doomed to fail.

12.  Upon our careful review of the Board’s decision, we are satisfied that the Board had duly assessed the applicant’s case and found that the applicant’s evidence to be highly unreliable as he was unable to provide any reliable evidence on even the most basic matters and his oral evidence contradicted itself and was otherwise too vague to be meaningful. The Board therefore concluded that the applicant had failed to make out his case on any of the applicable ground.  It is perfectly open for the Board to reach its findings and conclusion and we see no basis for intervention.

13.  We are satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny and we find nothing amiss from his decision.

14.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.