KHALID v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 74/2021

[2021] HKCA 1242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 74 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1544 OF 2018)

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DECISION

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

INTRODUCTION

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Deputy Judge”)  dated 13 July 2020 refusing to grant leave to the Applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“Board”) dated 23 July 2018.  By that decision, the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 25 August 2017 rejecting his non-refoulement claim.

2.  Having considered the Applicant’s summons dated 9 March 2021, his affirmation dated 9 March 2021 and his written submissions dated 17 May 2021 papers, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, rule 14A of the Rules of the High Court.

BACKGROUND

3.  The Applicant is a national of Pakistan.  He entered Hong Kong illegally on 16 December 2015 and was arrested by the police on the same day.  He raised a non-refoulement claim with the Director on the basis that, if he were to return to Pakistan, he would be harmed or killed by his paternal uncle over a land dispute.  The details of his claims were summarised by the Deputy Judge in [2] to [8] of the CALL-1 Form ([2020] HKCFI 1439).

DIRECTOR’S DECISION

4.  By a Notice of Decision dated 25 August 2017, the Director rejected the Applicant’s non-refoulement claim.  Given the low intensity and frequency of past ill-treatment from his uncle, the Director considered that the level of risk of harm to the Applicant were he to return to Pakistan would be low.  The Director also considered that state protection was available and internal relocation was viable, and that the Applicant’s claim stemmed from a family land dispute without any official involvement.  The Director’s decision covered all applicable grounds including torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

THE BOARD’S DECISION

5.  The Applicant appealed against the Director’s decision to the Board.  He attended an oral hearing before the Board on 8 June 2018.  On 23 July 2018, the Board dismissed his appeal.

6.  The Board found inconsistencies and discrepancies in the Applicant’s account of his dispute with his uncle.  The Board did not accept his claim that the dispute led to confrontation and physical altercation.  The Board considered that neither his uncle nor any other member of his family ever had any interest in harming or killing the Applicant, and that there was no real risk of harm if the Applicant were to return to Pakistan.  The Board held that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

THE DEPUTY JUDGE’S DECISION

7.  On 3 August 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of both the Director’s decision and the Board’s decision.  The Applicant advanced the following grounds of judicial review: (i)  he did not have legal representation before the Board (“the legal representation ground”); and (ii)  he did not have any translation of the hearing bundle before the Board and the Board’s decision was not interpreted to him (“the language assistance ground”).

8.  By his decision dated 13 July 2020, the Deputy Judge refused to grant the Applicant leave to apply for judicial review[5].  Referring to Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR 187 and FB v Director of Immigration HCAL 51/2007, the Deputy Judge held that the Applicant did not have an absolute right to free legal representation at all stages of the proceedings.  The Deputy Judge held that the Applicant had already had the benefit of legal representation before the Director, and was able to testify and make representation in the appeal hearing before the Board, answering questions put to him without difficulty.  The Deputy Judge therefore rejected the legal representation ground.

9.  The Deputy Judge also rejected the language assistance ground, noting that many of the documents had been provided to the Applicant when he still had legal representation, or were completed on his instructions by those representing him.  Further, the Applicant was assisted by an interpreter in the appeal hearing before the Board and never raised any complaint.

10.  Referring to cases including Nupur Mst v Director of Immigration [2018] HKCA 524, the Deputy Judge held that:

“17. …the evaluation of risk of harm is primarily a matter for the Director or the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh…

18. 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 14 – 31 of its decision with the benefit of hearing him albeit with reluctance to answer questions during his appeal hearing before the Board, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision, I do not find any reasonably arguable basis to challenge the finding of the Board.

19. 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…

20. 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.

21. 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 TO APPEAL

11.  On 20 August 2020, the Applicant made an application for extension of time to appeal against the Deputy Judge’s refusal of leave to apply for judicial review.  The application for extension of time was refused on 2 March 2021 by the Deputy Judge, who did not accept the Applicant’s explanation that he did not receive the decision of 13 July 2020[6].  The Deputy Judge also held that:

“6. More importantly, nor did [the Applicant] put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or his affirmation, and at the hearing of his summons he merely repeated his claim that he cannot go back to his home country due to his problem as before. As such and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal.

7. In the premises, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.”

12.  By summons dated 9 March 2021, the Applicant renewed his application for extension of time to appeal before this Court.

13.  In his affirmation dated 9 March 2021, the Applicant repeated that he did not receive the Deputy Judge’s decision of 13 July 2020. He also claimed that he could not read and write English; did not know the law on judicial review, was refused legal aid, could not afford lawyers and had no one to assist him.

14.  In his written submissions on 17 May 2021, the Applicant repeated the basis of his non-refoulement claim.  He claimed that the Board did not take issue with the credibility of his claim, but rejected his appeal on the basis that he could safely relocate within Pakistan.  In addition to the legal representation ground and the language assistance ground, numerous further grounds of judicial review, which apparently had not been advanced before the Deputy Judge, were raised.  These included general assertions of procedural impropriety and unfairness, failure to have proper regard to Country of Origin Information (“COI”), and failure to assess whether state protection existed in Pakistan.  There were some references to political activities.  The Applicant also argued that the Deputy Judge failed to apply the necessary scrutiny of the Board’s reasoning, carry out sufficient research on COI material or have regard to the COVID-19 pandemic in Pakistan.

DISCUSSION

15.  As held by the Court of Appeal in Farrukh Zaib [2020] HKCA 408 at [22] to [24], when considering whether to extend time for appealing against a decision refusing to grant leave to apply for judicial review, 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)  the prejudice to the respondent if an extension of time were granted.  Even if an applicant’s explanation for delay is not accepted, the court would still examine if the intended appeal has merit.

16.  In assessing the merit of an intended appeal, the applicable principles are as follows (see 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.  Though in non-refoulement cases an enhanced standard will be adopted 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 as a primary decision maker.  Assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  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 of 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 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)  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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  As observed by the Deputy Judge, the court record shows that the decision refusing to grant the Applicant leave to apply for judicial review was sent on 13 July 2020 to the Applicant’s last reported address[7]. The Applicant’s explanation that he did not receive the decision was no more than a bare assertion.  The Deputy Judge was entitled to hold that the Applicant had failed to give any reasonable explanation for the 24 days’ delay in bringing the intended appeal.

18.  The Deputy Judge correctly held that there is no absolute right to free legal representation at all stages of the non-refoulement claim process.  There is no error on the part of the Deputy Judge in rejecting the legal representation ground.

19.  The Deputy Judge also did not make any error in principle in his decision to reject the language assistance ground.  There was no complaint about lack of language assistance before the Board.  Further, before this Court, the Applicant’s summons for the renewed application for extension of time to appeal, his affirmation and his written submissions in support are all written in English. This would indicate that either the Applicant is himself conversant with the English language or has access to language assistance if necessary.

20.  The numerous other matters raised in the Applicant’s written submissions were apparently not advanced before the Deputy Judge (see the Deputy Judge’s summary of the grounds of judicial review raised in the application below at [13] of the CALL-1 Form).  An appeal to this Court is not an occasion to run arguments which could and should have been raised but not raised before the Deputy Judge.  In any event, the additional matters do no constitute viable grounds of appeal.  Some of them are clearly unarguable.  For instance, the Applicant claims that the Board did not take issue with the credibility of his claim, but it is clear that the Board did not accept his account of the dispute with his uncle because it contained inconsistencies and discrepancies.  Other matters, like his references to political activities, are not coherently articulated and their relevance have not demonstrated.  The Applicant’s numerous complaints are generally vague and bare assertions without particulars. None of them can give rise to viable grounds of appeal.

21.  This Court will only reverse the decision of the Deputy Judge refusing to grant leave to apply for judicial review if the Applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  The Applicant has not shown any such errors or viable grounds of appeal.  There is no prospect of success in the Applicant’s intended appeal.

22.  The application for extension of time to appeal is refused, and the Applicant’s summons of 9 March 2021 is dismissed.