AWAN ABDUL WAHAB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 237/2023, [2023] HKCA 1240

On Appeal from [2023] HKCFI 1835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 237 OF 2023

(ON APPEAL FROM HCAL NO 994 OF 2019)

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JUDGMENT

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 25 July 2023 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 14 March 2019, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 19 July 2016 and 21 December 2016.

BACKGROUND

2.  The Applicant is a national of Pakistan.  He was arrested on 30 November 2011 for unlawfully remaining in Hong Kong.  On 3 December 2011, he raised a torture claim[1] which he later withdrew.  On 9 July 2013, he lodged a non-refoulement claim, which was assessed on all applicable grounds other than torture risk.  The Applicant claimed that, if refouled, he would be harmed or killed by Bilal’s three brothers who accused him of having killed Bilal.  He also feared that he would not get a fair trial in Pakistan.  Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.

3.  By a Notice of Decision dated 19 July 2016 (“the Director’s First Decision”) and a Notice of Further Decision dated 21 December 2016 (“the Director’s Second Decision”, collectively “the Director’s Decisions”), the Director of Immigration dismissed the Applicant’s non-refoulement claim on the following applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  On 20 February 2017, the Applicant appealed the Director’s Second Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office.  On 14 March 2019, the Board refused to accept the late filing of the Applicant’s appeal (“the Board’s Decision”).  The Board’s reasons for its decision have been summarised by the Judge at §§9-10 of the CALL-1 Form, as follows:

“[9] The applicant only appealed the Director’s Second Decision to the Board. He filed his notice of appeal/petition on 20 February 2017, which was around six weeks late [15]. As a result, the Board proceeded to determine whether to allow the applicant’s late filing on paper.

[10] The Board refused the applicant’s explanation that, due to a change of address which he notified the Immigration Department, he failed to receive the Director’s Second Decision on time [16]-[19].  It further considered all the available documents, and stated that the merits of the applicant’s non-refoulement claim were insufficient to weigh in favor of its discretion to allow the late fling [20].  Therefore, since there was no special circumstance to warrant the late filing, the Board refused to exercise its discretion and rejected the request for late filing.”

THE JUDGE’S DECISION

5.  On 11 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decisions and the Board’s Decision.  No proper ground for seeking relief was given in the Form 86.  Attached to his supporting affirmation was a document titled “Grounds on which Relief is sought”.  In that document, the Applicant contended that the Director and the Board’s Decisions were not reasonable or fair.  He complained that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to support his non-refoulement claim as well as his appeal, and the Director failed to appreciate, or give proper weight to, the presence of state acquiescence.  He alleged that the Director had shown an unfair attitude towards him or his claim.  He also complained that the Director had failed to attain the high standard of fairness required by the Wednesbury test in reaching his decision.

6.  On 25 July 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[14] The applicant’s application for leave to apply for judicial review of the Director’s First Decision fails in limine because he has not exhausted the [avenue] of appeal to the Board under the Ordinance and the applicant has not been to show that there are special circumstances in this case that warrant this Court to exercise its discretion to otherwise permit his application. As such, the remedy of judicial review is not available to him …

[15] The applicant’s application in respect of the Director’s First Decision is therefore dismissed.

[16] The applicant’s application for leave to apply for judicial review of the Director’s Second Decision should also be dismissed as he had already appealed the Director’s Second Decision to the Board ...

[17] The issue before this Court is therefore whether the Board is correct in refusing to extend time for the applicant to file his notice of appeal against the Director’s Second Decision in respect of BOR 2 risk.

…

[19] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he understood the Board’s Decision and that he is married in Hong Kong with 2 children. He further asked this Court to consider the documents in relation to his uncle’s death in Pakistan and the warrant of arrest against him. This Court refused to accept the documents because those documents should have been produced to the Director or the Board for investigation into the facts of his case. This Court has no power to make investigation itself, as held by the Court of Appeal in the case above. In fact, I considered that those documents are irrelevant as to whether the Board should extend time for him to file his notice of appeal out of time.

[20] Having considered the evidence, the Board, in the Board’s Decision, held that the [Director’s Second] Decision had been sent to the applicant’s last known address …

[21] I consider that the Board was entitled to hold the applicant to the consequences for not updating his address with the Immigration Department…

[22] The applicant has raised no valid ground to challenge the Board’s findings in support of the Board’s Decision, refusing to extend time for him to file his notice of appeal.  Therefore, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

THIS APPEAL

7.  In his Notice of Appeal dated 28 July 2023, the Applicant raised the following grounds of appeal: first, he contended that the Judge failed to consider all applicable grounds and in particular Articles 2 and 22 of the Hong Kong Bills of Rights; second, the Judge was wrong to accept the Board’s finding that “the only fact established is that the applicant is a Pakistani male, he faces no risk of any harm at all” and conclude that the claim based on persecution risk failed; and third, the finding of the Judge that the Board’s decision was without fault was irrational.

8.  The Applicant failed to lodge any written submissions not less than 28 days before the scheduled hearing of the appeal, contrary to the directions of the Registrar of Civil Appeals dated 19 September 2023. Accordingly, he is deemed to have abandoned the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper.  Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

9.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, 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.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

10.  Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  The 3 grounds of appeal raised by the Applicant are all without substance:

(1)  In respect of the first ground, the assessment of the Applicant’s claim was primarily within the province of the Board and the Director, not the Judge.  Further, the critical issue before the Judge was whether the Applicant had shown a reasonably arguable ground to judicially review the Board’s Decision to refuse to allow the Applicant to appeal against the Director’s Second Decision out of time, not the merits of the Applicant’s non-refoulement claim.

(2)  The second ground seems to have been copied from a template often used by non-refoulement claimants in applications for leave to apply for judicial review, and has no relevance to the Applicant’s case.  The Judge did not make the alleged finding referred to in that ground.

(3)  The third ground is a bare, general, allegation without particulars, and plainly cannot constitute a valid ground of appeal.

12.  The Applicant has failed to show any error in the Judge’s decision refusing to grant leave to apply for judicial review.  We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.  In passing, we note that the Judge mistakenly stated that the Applicant did not raise any specific ground of review in his affirmation (see §13 of the CALL-1 Form).  This mistake does not, however, affect the Judge’s reasoning for refusing to grant leave to apply for judicial review.

13.  The Applicant’s appeal against the Order has no merit and is dismissed.

[1]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2]  This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]  This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.