RE KHAN IMRAN

CAMP 39/2021

[2021] HKCA 835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 39 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1526 of 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 8 July 2020 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation in support of his application, and also lodged a written submission on 30 March 2021.  

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 13 July 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 7 April 2017 rejecting his non-refoulement claim.

5.  The applicant is a national of Pakistan aged 32.  He entered Hong Kong illegally and surrendered to the Immigration Department on 13 March 2014.  He later raised a non-refoulement claim. 

6.  The applicant’s claim is based on his fear of being harmed or killed by members of the Pakistan Muslim League N (“PMLN”) because of his support and involvement with the rival Pakistan Tehreek-e-Insaf party (“PTI”).  The details of the applicant’s claim were set out in the decisions of the Director and the Board, and summarised by the Judge in the CALL-1 Form dated 8 July 2020[1] at [2] to [6].  We will not repeat them.     

7.  By his decision dated 7 April 2017, the Director rejected the applicant’s claim on the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] grounds.

8.  The applicant’s appeal to the Board was heard on 6 June 2018.  By its decision dated 13 July 2018, the Board dismissed the appeal.  Primarily, the Board found the applicant’s evidence problematic and had numerous significant inconsistencies.  It found the applicant had exaggerated his involvement and affiliation with the PTI and invented the claimed past incidents to create a profile and a basis for his non-refoulemennt claim.  The Board held there was no credible evidence to show that the applicant faced a real risk of being harmed or killed by any PMLN people.  The Board concluded that the applicant failed to show he was entitled to non-refoulement protection on any of the appliable grounds.

9.  On 1 August 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  He put forward nine grounds for seeking relief as set out in [11] of the Form CALL-1 dated 8 July 2020 as follows:

“(1) misdirection in law in that the adjudicator misdirected herself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Pakistan;

(5) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirected herself as to the extended meaning of state protection;

(6) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.

10.  On 8 July 2020, the Judge dismissed the application for leave to apply for judicial review and gave his reasons in [12] to [18] of the Form CALL-1.  In gist, the Judge found the grounds were broad and vague assertions, and devoid of particulars and details, and were not reasonably arguable.  The Judge pointed out that assessment of credibility, COI and risks of harm are matters for the Director and the Board, who are the primary decision makers, and the Court should not interfere with their decisions in the absence of legal errors, irrationality and procedural irregularities.  The Judge did not accept the applicant’s complaint about the bundle for the hearing before the Board, holding that even if it were served on him only one week before the hearing, there was no real prejudice to him since he was familiar with most of the documents.  The Judge further observed that the Board had made adverse finding on the credibility of the applicant’s claim, and had further found that that even if his claim was to be accepted, the risk of harm was a localised one.  The Judge considered there were no errors of law or procedural irregularities in the Board’s decision, and concluded that the applicant’s intended judicial review had no reasonable prospect of success.   

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal. 

12.  By a summons filed on 23 August 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 4 November 2020, and by his decision handed down on 21 January 2021[6] refused the application. On 1 February 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.    

13.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

14.  The applicant was late by about one month, which is not insignificant.  He explained that he did not receive the court’s letter and only learned of the Judge’s decision when the immigration officer informed him of it.  He also stated that he did not know English and the judicial system, and had to rely on help from others.  He, however, had not elaborated on why he did not receive the decision which was mailed to the address provided by him and had not been returned by the post office.  We agree with the Judge that he has not provided good reason for the delay.  In the circumstances, the applicant has to show that his intended appeal has a real prospect of success. 

15.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  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.  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.

17.  In the present application, the applicant did not set out any proposed ground of appeal in his summons and his supporting affirmation.  In the written submission, the applicant raised the following points:

(1)  The Board’s decision was irrational and was the result of procedural unfairness or irregularities.  

(2)  The Board failed to apply the high standard of fairness in that he was not given legal or language assistance with regard to the hearing bundle which was in English.

(3)  The Board had relied on sources of news that were unofficial, hearsay or outdated, leading to groundless speculation that it would be safe for him to return to his country.

(4)  The Director failed to consider the concept of extended acquiescence.  His enemy was connected with the police and it was unsafe for him to return to his country.

(5)  The Judge wrongly held that before the Board, he was free to speak and was given legal and language assistance.  He in fact needed help but he was refused legal aid.

18.  With regard to (1) and (3), they are bare assertions unsupported by particulars or details.  As for (2) and (5), it is established law that the high standard of fairness does not mandate that a non-refoulement claimant should be provided with legal assistance at all stages of the application.  Further, as the Judge correctly pointed out, he was familiar with the majority of the documents in the hearing bundle, such as the non-refoulement claim form, his notice of appeal and the Director’s decision, and there was no conceivable prejudice or cause for complaint.  In respect of (4), the Director’s decision is of no relevance since the applicant had appealed to the Board.  Further, given that the Board had found the claim to be incredible, there is no evidential basis to support his assertion of risks of harm.       

19.  We agree with the Judge that it has not been shown there are legal errors, irrationality or procedural irregularities in the Board’s decision, and the intended judicial review application had no prospect of success.  The Judge was right in refusing to give leave to apply for judicial review and dismissing the application.       

20.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to give leave to appeal for judicial review has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 1 February 2021.