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CACV 514/2021
[2022] HKCA 202
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 514 OF 2021
(ON APPEAL FROM HCAL 416 OF 2020)
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| BETWEEN |
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RAZA KAMRAN AHMED |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS
PETITION OFFICE |
Putative Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
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Before: Hon Chow JA and Lisa Wong J in Court
Date of Written Submissions: 17 January 2022
Date of Hearing: 15 February 2022
Date of Judgment: 2 March 2022
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JUDGMENT
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Hon Chow JA (giving the Judgment of the Court):
1. This is an appeal against the order made by Deputy High Court Judge P Li (“the Judge”) on 16 November 2021 refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 22 January 2020. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 April 2017.
BACKGROUND
2. The Applicant is a national of Pakistan. He arrived in Hong Kong on 16 August 2013 and was allowed to stay until 15 September 2013. He overstayed and, on 25 September 2013, was arrested by the police for overstaying. The Applicant raised a non-refoulement claim on 2 October 2013.
3. The Applicant claims that if refouled to Pakistan, he will be at risk of being harmed or killed by the police or members and supporters of the Pakistan Muslim League. Details of the Applicant’s claim have been summarised by the Judge at §§9-37 of the CALL-1 Form.
4. By a Notice of Decision dated 5 July 2016, the Director rejected the Applicant’s non-refoulement claim on the following grounds: torture risk[1], BOR 3 risk[2], and persecution risk[3] (“the Director’s First Decision”).
5. On 8 August 2016, the Applicant appealed the Director’s First Decision to the Board, which was more than 2 weeks out of time.
6. On 1 February 2017, the Board dismissed the Applicant’s appeal (“the Board’s First Decision”). The Board was not satisfied with the Applicant’s explanation that he did not receive the “appeal documents” and refused to grant extension of time for the appeal. The Board also considered the merits of the Applicant’s claim and concluded it had no merits.
7. On 6 April 2017, the Director, on his own initiative, considered the Applicant’s claim in respect of BOR 2 risk[4] and invited the Applicant to submit, within 14 days, any further materials for his consideration. The Applicant did not provide any materials to the Director.
8. By a Notice of Further Decision dated 25 April 2017, the Director rejected the Applicant’s claim in respect of BOR 2 risk (“the Director’s Second Decision”).
9. On 30 June 2017, the Applicant appealed the Director’s Second Decision to the Board, which was more than 7 weeks out of time.
10. On 22 January 2020, the Board rejected the late filing of the Applicant’s appeal and affirmed the Director’s Second Decision (“the Board’s Second Decision”). The Board found no justification to grant the Applicant extension of time to file the appeal and, in an addendum to the decision, found that even if the appeal was allowed to proceed out of time, the Applicant’s appeal had no prospect of success.
THE JUDGE’S DECISION
11. On 16 March 2020, the Applicant filed a Form 86 and a supporting affirmation seeking leave to apply for judicial review of the Board’s Second Decision. The Applicant complained about various matters, including that he was not provided with language assistance, the Duty Lawyer Service stopped representing him, he did not receive the letter from the Director in relation to BOR 2 risk, there was no screening interview, and he had no chance to give further evidence regarding the BOR 2 claim (see §49 of the Form CALL-1, [2021] HKCFI 3365).
12. On 3 February 2021, the Applicant applied to withdraw the leave application with a supporting affirmation stating that his problem had been resolved and he no longer had any problem in Pakistan. On 23 February 2021, leave was granted to the Applicant to withdraw his application (§5). However, on 25 May 2021, the Applicant applied to re-instate his leave application on the ground that his family had failed to resolve his problem, his enemies were still looking for him, his life was still in danger, and thus he could not return to Pakistan. At the oral hearing before the Judge on 6 September 2021, the Applicant alleged that his problem in Pakistan had not yet been resolved as there was still fighting between Pakistan Tehreek-e-Insaf and the Pakistan People’s Party. The Judge granted the Applicant leave to re-instate the application (§§7-8).
13. In his decision, the Judge dealt with both the Board’s First Decision and Second Decision.
14. In respect of the Board’s First Decision, the Judge considered that there was no merit in his appeal against the Director’s First Decision, and the Board was correct to refuse to grant to the Applicant extension of time to appeal (§§49-51).
15. In respect of the Board’s Second Decision, the Judge considered and pointed out that the Applicant had no right to legal assistance at all stages of a non-refoulement claim (§52(a)); the Applicant should seek language assistance according to his resources as there was no duty on the part of the Director to supply translated documents; the Applicant was in fact able to find language assistance as shown by the fact that his affirmation was in typewritten English (§52(b)); the Board’s Second Decision was sent to the Applicant’s address and under normal circumstances, should have reached the Applicant by mail (§52(c)); the Director should not be criticised for deciding the BOR 2 ground on the existing information as there was no response from the Applicant to the Director’s invitation to supply further materials for his consideration in relation to BOR 2 risk (§52(e)); and the Applicant was supposed to provide all material facts and documents in support of his non-refoulement claim and there was nothing in his affirmation dated 16 March 2020 to indicate that there was any additional evidence that he might adduce in relation to BOR 2 risk (§52(f)).
16. The Judge considered that the adjudicator was wrong to conclude that the Applicant had received the Director’s Second Decision on around 25 April 2017. Although the Director’s Second Decision was sent to the Duty Lawyer Service (DLS) on 25 April 2018, DLS no longer represented the Applicant and there was no evidence that the Applicant was informed of the Director’s Second Decision at that time (§52(d)). This having been said, it is clear that the Applicant did receive the Director’s Second Decision no later than around 14 June 2017 (§52(c)(v)).
17. The Judge agreed with the adjudicator’s analysis that there was no merit in the Applicant’s appeal against the Director’s Second Decision, as well as his decision to refuse to extend time for the Applicant to appeal the Director’s Second Decision.
18. The Judge did not find any error of law or procedure by the Board, and considered the Board’s Decision to be reasonable (§54). The Judge was also satisfied that the Applicant’s intended judicial review was not reasonably arguable, and there was no reasonable prospect of success in the intended application (§25).
19. By his decision dated 16 November 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.
THIS APPEAL
20. In his Notice of Appeal dated 19 November 2021, the Applicant wrote that he will “face hardship life if he return back to his home country, and the Torture Claims Appeal Board has significantly relied on source of news which are officially not recognized or it is simply hearsay. The lack of credible sources of information has resulted in them making groundless speculations.”
21. In his 5-page written submissions dated 17 January 2022, the Applicant makes some general complaints against the Judge’s decision, but has failed to identify any specific error in the Judge’s decision. He repeats his fear of returning to Pakistan on the ground that he will face hardship or even be tortured or killed by his enemies in his home country.
22. At the hearing of this appeal on 15 February 2022, the Applicant stated that he had a heart problem and had 2 heart attacks.
DISCUSSION
23. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.
24. 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. 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.
25. 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, 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.
26. No viable ground of appeal has been put forward by the Applicant. In particular, he has failed to identify any error of law or failure by the Judge to take into account relevant matters already placed before him, or show that the Judge’s decision is otherwise plainly wrong. That being the position, the present appeal has no merits, and is dismissed.
(Anderson Chow)
Justice of Appeal |
(Lisa Wong)
Judge of the Court of
First Instance |
The Applicant, unrepresented, appeared in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[4] 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.
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