AT v. DIRECTOR OF IMMIGRATION AND ANOTHER

CAMP 506/2021

[2022] HKCA 488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 506 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 165 OF 2016)

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J U D G M E N T

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

1.  On 25 January 2017, Deputy High Court Judge Marlene Ng (as she then was) (“the Judge”) refused the applicant’s application for an extension of time for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) / Adjudicator of the Non-refoulement Claims Petition Office (“the Adjudicator”) concerning his non‑refoulement protection claim.

2.  On 30 July 2021, the applicant filed a summons for an extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 8 February 2017.  He had delayed for more than 4 years with his intended appeal. 

3.  On 18 October 2021, the application was dismissed by the Judge.

4.  On 9 November 2021, the applicant took out this application in the Court of Appeal for leave to appeal out of time against the Judge’s decision of 18 October 2021.  We would treat this as a renewed application for leave to appeal out of time against the Judge’s decision of 25 January 2017 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

5.  The applicant is a national of Pakistan and is 37 years old.  He claimed that he entered Hong Kong illegally on 1 November 2009.  He was arrested on 2 November 2009 and referred to the Immigration Department on 5 November 2009.  He first lodged his torture claim form on 7 December 2013 and a supplementary claim on 31 October 2014, on the basis that if he were to return to Pakistan, he would be killed or harmed by two persons, Khawaja Asif (“KA”) and Tariq (“T”), and their people, because they wanted to force him to sell his land to them.  Upon the commencement of the unified screening mechanism (“USM”) on 3 March 2014, the applicant’s claim was taken to be a non-refoulement claim and was assessed under the USM.

The Director’s decision

6.  By a Notice of Decision dated 26 February 2015, the Director rejected the applicant’s claim on torture risk^[1], BOR 3 risk^[2] and persecution risk^[3]. 

The Board’s decision

7.  The applicant attended the hearing of his appeal against the Director’s decisions before the Board on 12 November 2015.  The Board considered the applicant’s appeal based on the applicable grounds under the USM. 

8.  The applicant claimed that he had inherited a piece of land (“the Land”) from his father.  They were supporters but not members of a political group known as Pakistan Peoples Party (“PPP”).  In or around February/March 2009, KA (being in charge of a local political group known as Pakistan Muslim League (N), which opposed PPP) and T, both of whom owned land adjacent to the Land, demanded that the applicant’s father should sell them the Land.  KA and T also sought assistance from the local police to force the applicant’s father to sell the Land to them.

9.  The Board expressed doubt that the applicant actually owned the Land as this was not supported by any official record or documents, even though the applicant was still in touch with his father.  In any event, the land-grabbing exercises all targeted the applicant’s father and not the applicant himself, hence he should not face any real chance of ill treatment from KA and/or T. 

10.  Since 2009, no harm had befallen the applicant’s father.  The Land remained unoccupied and the owners on either side had proceeded to develop their own land.  Hence, there was no foreseeable risk of personal harm, and no real risk of torture.  It followed that there was no substantial risk, nor real chance of torture or cruel, inhuman and degrading treatment or punishment (“CIDTP”) under BOR 3.  Further, there was no persecution risk as this was premised on the applicant’s alleged ownership of the Land and the pressure to sell was directed towards his father. 

11.  The Board confirmed the Director’s decision and dismissed the applicant’s appeal on 30 May 2016.

The intended judicial review

12.  The applicant filed a Form 86 and a supporting affirmation on 14 September 2016 to seek leave to apply for judicial review against the decisions of the Director and the Board.

13.  However, the Form 86 was not filed within time as prescribed under Order 53 rule 4(1) of the Rules of High Court and it was out of time by about 13 days.  The applicant’s application was in effect an application for extension of time for leave to seek judicial review.  While the Judge determined that the delay was not a significant lengthy period, nonetheless, the applicant did not offer any reason for the delay. 

14.  In any event, the Judge proceeded to analyse the merits of the applicant’s claim.  The Judge summarised his grounds for his intended challenge as follows:

(1)  Failure to give sufficient weight to the element of state acquiescence or extended concept of state acquiescence (against the decisions of the Director and the Board);

(2)  Failure to consider or give sufficient weight to and/or to give reasons for rejecting Country of Origin Information (“COI”), which led to a speculative and impractical outcome (against the decision of the Director); and

(3)  Failure to attain the high standards of fairness required by the Wednesbury test (against the decision of the Board).

The Judge’s decision

15.  The Judge noted that the applicant did not raise any challenge against the factual findings and inferences made by the Board upon considering the available evidence.  The Judge held that in the absence of any challenge on the facts as determined by the Board, she was not persuaded the 3 intended grounds would be sustainable on the basis of the threshold requirement for leave to apply for judicial review. 

16.  For completeness, the Judge briefly dealt with each intended ground. 

17.  Regarding Ground 1, the Judge found that the Director had considered the COI both against and in favour of the existence of state protection before concluding that steps had been taken to improve police professionalism and reduce corruption in Pakistan, and reasonable state protection would be available to the applicant upon his return to Pakistan. The Board was also alive to state acquiescence, the extended concept of state acquiescence, the COI materials that showed some improvements in police professionalism and citizens having some avenues of complaint in Pakistan. Hence, there was no merit as regards Ground 1.

18.  For Ground 2, the Director had considered the applicant’s claim and made relevant enquiries with focus on the elements of state involvement/acquiescence and the viability of internal relocation.  It was not strictly necessary for the Board to consider the COI materials as it was determined that the applicant was not personally at risk of torture or CIDTP.  Out of caution, the Board did consider the COI materials and concluded that internal relocation within Pakistan was possible for the applicant. Hence, there was no merit in respect of Ground 2.

19.  Ground 3 concerned the Board’s alleged failure to attain high standards of fairness, but was premised on the validity of Grounds 1 and 2.  As these grounds were untenable, Ground 3 would not be sustainable on its own.

20.  Accordingly, the Judge dismissed the application for extending time to seek leave for judicial review on 25 January 2017.

Application for extension of time to appeal against Judge’s decision

21.  By a summons and a supporting affirmation both filed on 30 July 2021, the applicant sought an extension of time to appeal against the Judge’s decision refusing the leave application for judicial review. 

22.  The 14-day period for him to file an appeal under Order 53 Rule 3(4) of the Rules of High Court, Cap 4A ended on 10 February 2017, hence he was more than 4 years late with his intended appeal.

23.  The court records showed that on 25 January 2017, the judgment of 25 January 2017, the Order and Call 1 Form (“the Documents”) were sent by post to the applicant at the Castle Peak Bay Immigration Centre (“CPBIC”) and the address he provided on his recognizance paper (“the Recognizance Address”).  However, both sets of the Documents were returned because the applicant had been released from CPBIC on 24 September 2016 and the Recognizance Address was an incomplete address.

24.  In dealing with the application for extension of time to appeal, the Judge had regard to the principle that it is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  It is also the litigant’s responsibility to keep his address in the court’s record up-to-date^[4].

25.  The Judge considered that the applicant did not make a timely enquiry with the court to find out about the progress or outcome of his application by Form 86 for extension of time to seek leave to apply for judicial review.  The applicant did not state clearly when he had checked with the court, it was noted that a date of “4/10/2019” was stamped on the copy of the judgment dated 25 January 2017 that was produced as exhibit “A” in the applicant’s affirmation dated 30 July 2021.  The Judge held that there was no good or sufficient reason for the inordinate delay of over 4 years since her judgment was handed down, or more than 1½ years after the date of “4/10/2019”.

26.  Even on considering the merits, the applicant failed to put forward any grounds to show how the Judge had erred.

27.  Further, the Court of Appeal had held that the decision of the Director is not susceptible to judicial review if an applicant has appealed or petitioned to the Board from such decision^[5].

28.  On 18 October 2021, the Judge refused the applicant’s application for leave to appeal out of time and dismissed the summons dated 30 July 2021.

Grounds of intended appeal

29.  Pursuant to a summons and supporting affirmation both dated 9 November 2021, the applicant sought to appeal the Judge’s decision dated 18 October 2021. 

30.  The applicant’s stated grounds of appeal in his affirmation and written submissions dated 22 November 2021 may be summarised as follows:

(1)  The Director and the Board did not fairly determine the applicant’s case.

(2)  There was real procedural unfairness throughout the case because there is a public policy to try to dispose of non-refoulement claims as quickly as possible.

(3)  The Director and the Board did not carefully and thoroughly assess the applicant’s case.  In particular, there is no state protection as evidenced by the applicant’s attempt to make police reports but in vain.

(4)  There was also breach of procedural fairness because:

(a)  The Board unlawfully fettered its discretion in refusing the applicant’s appeal on the ground that “they did not satisfy the requirement”;

(b)  The Board acted in a procedurally unfair manner in dealing with the applicant’s appeal; and

(c)  The Board’s decision to refuse the applicant’s appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness. 

Legal Principles

31.  As mentioned earlier, the application before this Court should be treated as a renewed application for extension of time to appeal against the judge’s decision of 25 January 2017.

32.  In considering whether to extend time for leave to appeal, the Court will have regard to: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) any prejudice to the respondent if extension of time is granted. 

Discussion

33.  The applicant was some 13 days late in applying for an extension of time for leave to seek judicial review, which the Judge determined to be not significantly lengthy.  Nonetheless, no satisfactory explanation was given for the delay.

34.  In assessing the merit of the intended appeal, the court would adopt the legal principles set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In our judgment, the intended appeal of the applicant has no prospect of success. 

35.  There are no valid grounds of appeal in the general propositions and assertions in the applicant’s submissions. 

36.  In determining an appeal, the Court of Appeal focuses on the decision of the Judge and would only reverse that decision if it can be demonstrated that the Judge had made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong. 

37.  The applicant’s grounds of appeal are bare assertions.  As the Courts have repeatedly stated, assessment of the merits of the claim is a matter for the Director and the Board, who are the primary decision makers.  The Court’s focus on a judicial review application is the lawfulness and rationality of the primary decision makers’ decision and the procedural fairness of the decision-making process.  The Board had given a detailed analysis and reasons for dismissing the applicant’s appeal.  The applicant has failed to provide any evidence to refute the findings of the Board and the Judge did not find any basis to disturb the findings of fact by the Director and the Board.

38.  Furthermore, the applicant’s complaints against the Board of procedural unfairness were not raised in the leave application before the Judge.  Hence, it is not open to the applicant to put forward these complaints as new grounds for the first time in the intended appeal, which are well outside the time limit for bringing the judicial review proceedings.  In any event, the applicant did not provide any particulars, elaboration or evidence in support of such grounds.  

39.  For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We refuse to extend time to appeal against the decision of the Judge on 25 January 2017 and dismiss the summons filed on 9 November 2021.