RE BUTT ANJUM SALEEM

CAMP 78/2021

[2021] HKCA 1726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 78 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 469 OF 2018)

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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):

Introduction

1.  On 27 July 2020, by way of a decision (“the Deputy Judge’s Decision”)  set out in Form CALL-1 ([2020] HKCFI 1694), Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 22 December 2017 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”)  dated 30 October 2015 (“the Director’s First Decision”)  and 1 June 2017 (“the Director’s Second Decision”).

2.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

3.  The 14-day time period for the applicant to appeal the Deputy Judge’s Decision provided under Order 53, rule 3(4)  of the Rules of the High Court (Cap 4A)  (“the RHC”)  expired on 10 August 2020.  On 2 September 2020, the applicant sought extension of time before the Deputy Judge to appeal the Deputy Judge’s Decision.  He was around three weeks out of time.

4.  On 2 March 2021, the Deputy Judge refused to grant extension of time to the applicant (“the Extension of Time Decision”).

5.  By a summons dated 10 March 2021 (“the CA Summons”), the applicant renewed his application to appeal out of time before this Court.  Under Order 59, rule 14A(1)  of the RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  Directions were given by the Registrar of Civil Appeals to the applicant on 3 May 2021 concerning the conduct of the application.  Paragraph 8 of those directions also stipulated that upon consideration of the documents lodged, the Court will decide whether to determine the application on the paper.  After considering the documents filed, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Pakistan.  He came to Hong Kong illegally on 8 November 2009 and was arrested by the police on 12 November 2009.  On 15 November 2009, he lodged a torture claim but later withdrew his application.  On 24 May 2010, he made a written request to reopen his case.  His torture claim was subsequently converted to a non-refoulement claim after the implementation of the unified screening mechanism.

7.  The applicant’s personal background and his claim were summarized at paragraph 9 of the Director’s First Decision and paragraphs 3 - 20 of the Board’s Decision.

8.  Briefly stated, the applicant claimed that he would be harmed or killed by his Jutt neighbours if he was returned to Pakistan. The applicant was born in a family of Butt caste which was said to have a continuous conflict with the Jutt.  There were unwritten rules that the Butt could not visit several parts of Jutt but the applicant’s brother Ali refused to follow those restrictions.  One day, Ali was badly beaten up by the Jutt neighbours.  The applicant was able to identify the attackers and report them to the police.  Therefore, on one evening, the attackers gathered outside his house.  The applicant took out a gun and fired in the air which scared away the attackers.  However, he was reported to the police for attempting to shoot the Jutt neighbours, together with Ali who was wrongly accused of a rape case. They were both detained.  Although they were subsequently released for insufficient evidence, the Jutt neighbours vowed to revenge and, on one night, the applicant was shot in his left thigh.  Out of fear, they fled to Hong Kong for protection.

The Director’s Decisions and the Board’s Decision

9.  By way of the Director’s First Decision, the Director assessed and dismissed the applicant’s non-refoulement claims on the BOR 3 risk[1], persecution risk[2], and torture risk[3] while the Director’s Second Decision assessed his claim on BOR 2 risk[4].

10.  The applicant lodged an appeal to the Board against the Director’s Decisions.  An oral hearing was held on 13 October 2017, during which the applicant answered inquiries from the Board.  After hearing the applicant, and considering his evidence in the non-refoulement claim form, the Board found that the applicant gave inconsistent accounts between what was stated in his non-refoulement claim form and his oral testimony which rendered his claim unsupported (paragraphs 42 - 44 of the Board’s Decision).  It further found that state protection and internal relocation were both available to the applicant (paragraphs 56 - 63 of the Board’s Decision).  Thus, the Board dismissed his appeal.

The Deputy Judge’s Decision

11.  On 22 March 2018, by way of a Form 86, the applicant sought leave to challenge the Board’s Decision.  The applicant did not request for an oral hearing and his grounds of review in the supporting affirmation were comprehensively summarized by the Deputy Judge at [14] of the Deputy Judge’s Decision as follows:

“14. On 22 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  irrationality in failure to consider the concept of state acquiescence;

(2)  procedural impropriety in making insufficient inquiry;

(3)  failure to provide adequate reasons as to decision made;

(4)  procedural impropriety/unfairness in failure to investigate into COI of Pakistan;

(5)  irrationality in failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6)  irrationality in failure to consider a consistent system of human right violations;

(7)  irrationality in failure to consider if state protection exists in Pakistan;

(8)  irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(9)  procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(10)  procedural impropriety in applying the incorrect standard of proof;

(11)  failure to give reasonable basis for rejecting his claim;

(12)  failure to consider the extended form state acquiescence;

(13)  failure to fully consider the COI reports in assessing risk to the Applicant;

(14)  irregularity of the decision-maker being a different person than the interviewing officer; and

(15)  no proper basis for consideration of internal relocation.”

12.  After considering the documents, the Deputy Judge refused to grant leave to him to apply for judicial review.  The Deputy Judge set out his reasons for refusal at [15] - [20] of the Deputy Judge’s Decision:

“15. 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 Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to make sufficient inquiry or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was the concept of state acquiescence to his claim, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or how did the adjudicator apply the incorrect standard of proof or fail to give reasonable basis for rejecting 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.

16. As for his complaint under his last ground that the adjudicator being a different person than the interviewing officer of the Immigration Department in hearing his appeal, I fail to see any rationale for insisting that the Director or his representative to hear the appeal, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected under such arrangement. There is simply no basis or merit in this complaint of the Applicant.

17. 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.

18. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19. 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.

20. 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

13.  On 2 September 2020, the applicant took out a summons to seek extension of time to appeal the Deputy Judge’s Decision.  By way of the Extension of Time Decision, the Deputy Judge dismissed the applicant’s application on the basis that he failed to provide any good reason for the delay and that his intended appeal had no prospect of success.  Thus, the Deputy Judge concluded that it would be futile to extend time.

Renewed application for extension of time to this Court

14.  On 10 March 2021, the applicant renewed the application for extension of time to appeal the Deputy Judge’s Decision before this Court.  In his supporting affirmation, the applicant advanced two grounds that (a)  the Deputy Judge was wrong in law in holding that there was no state acquiescence or involvement (“Ground 1”); and (b)  the Deputy Judge failed to provide detailed reasons in support of his decision (“Ground 2”).

Legal principles

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of the intended appeal; and (d)  the prejudice to the respondent if an extension of time were granted.

16.  Even if the court accepts that the applicant’s explanation for delay is reasonable, an applicant still has to show that the appeal has a reasonable prospect of success before extension of time will be considered.  When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; Re Muhammad Shehbaz [2020] HKCA 256.

17.  In this respect, in assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. For the purpose of this application, the principles can be summarised as follows:

(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 the 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)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new arguments, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  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 decision of 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 RHC.

Discussion

18.  A delay of around three weeks is not insignificant in the context of a statutory time limit of 14 days.  The applicant failed to provide any cogent explanation for the delay.  Further, after considering his grounds of appeal, we are of the view that his intended appeal has no merit at all.

19.  As mentioned, the assessment of evidence and COI materials and state protection are primarily within the province of the Board.  The court will not intervene in the Board’s assessment on state acquiescence or involvement unless it is reversible on valid public law ground.  As pointed out by the Board at paragraphs 56 - 61 of the Board’s Decision, the relevant country of origin information showed that sufficient state protection would be offered to the applicant.  Further, the applicant’s dispute, in his own evidence, was with the Jutt residents thus there was no public official involved in the matter.  Thus, in our judgment, the Board’s finding on the availability of state protection was well based and justified.  The Judge was therefore correct to say the applicant failed to show how the concept of state acquiescence was relevant to his case.  Ground 1 has no merits.

20.  Ground 2’s complaint about the Deputy Judge’s failure to provide detailed reason in his decision is clearly untenable as the Deputy Judge did provide detailed explanations in [15] - [20] of the Deputy Judge.

21.  For the above reasons, there are no viable grounds of appeal, and no merits in the intended appeal.  It would be futile to extend time.  We therefore will not grant the applicant any extension of time. The CA Summons is dismissed.