DITTA ALLAH v. TORTURE CLAIMS APPEAL BOARD

CAMP 93/2022

[2022] HKCA 811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 93 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1948 OF 2020)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application by the applicant for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 5 July 2021 refusing to grant leave for judicial review.[1] The intended judicial review was directed against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) dated 14 September 2020 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) to reject his claim for non-refoulement protection in Hong Kong.

Background

2.  The applicant is a national of Pakistan born in 1992. After leaving school in 2008, he came to Hong Kong in March 2008 to join his father on a dependant visa under his father’s sponsorship. Although his father died in Pakistan some time in 2011, the applicant’s dependant visa was granted until 7 February 2012. His application for an extension of his visa was refused and he was required to leave Hong Kong by 25 March 2013. He did not depart, however, having been arrested by the police for an offence on 21 December 2012. He was convicted of handling stolen goods and sentenced to 2 years’ imprisonment, which he completed on 21 April 2014. On 17 June 2014, a deportation order was made against him. By several letters between 16 June and 11 September 2014, he signified an intention to claim non-refoulement protection. On 15 September 2014, he was released from the Castle Peak Bay Immigration Centre (“CIC”) on recognizance.

3.  On 30 April 2019, the applicant was arrested by the police for breach of condition of stay and on 25 May 2019, he was convicted of taking employment when a deportation order was in force and sentenced to 15 months’ imprisonment. He completed his sentence on 23 March 2020 and has since been detained at CIC.

4.  On 15 April 2020, the applicant lodged a non-refoulement claim form, alleging that if he returned to Pakistan he would be harmed or killed by his paternal uncle who wanted a piece of land that the applicant’s father had transferred to him.

5.  After an interview of the applicant on 6 May 2020, by a Notice of Decision dated 14 May 2020, the Director assessed and rejected his claim with reference to all applicable grounds, namely, BOR 3 risk[2], persecution risk[3], torture risk[4], and BOR 2 risk[5].

6.  On 8 June 2020, the applicant lodged an appeal to the Board. Although the notice of appeal might have been lodged beyond the prescribed 14-day period after receipt of the Director’s decision, the Board decided to allow the filing of the appeal. A hearing was conducted before the Board on 2 September 2020, at which the applicant appeared and answered the Board’s questions through an Urdu interpreter. On 14 September 2020, the Board issued its decision, dismissing the applicant’s appeal. The Board noted that although the applicant had stated in his claim form that his father had transferred the land in question to him, at the hearing he said he was not sure his father had transferred the land to him during his lifetime, and that he might have left it to him in his will. But the applicant said he had not seen a copy of his father’s will, nor had he asked his brothers about it or to help obtain documents from Pakistan. The Board noted that the applicant was not in custody from his release on recognizance on 15 September 2014 to his arrest on 30 April 2019, which would have been ample time for obtaining copies of any land documents or his father’s will. In the end, the Board, having reminded itself of the relevant legal principles, did not find the applicant’s claim that he was the owner of a piece of land which had been occupied by his uncle credible. Nor did the Board find it credible that the applicant’s uncle posed a serious threat to him or that the applicant would be at real risk of being harmed or killed by his uncle if he returned to Pakistan. The Board also considered that if the uncle did pose a real threat, relocation within Pakistan would be safe and reasonable for the applicant.

The application for leave to apply for judicial review in the Court of First Instance

7.  On 28 September 2020, the applicant filed an application to the Court of First Instance, by Form 86 supported by an accompanying affirmation, for leave to apply for judicial review against the Board’s decision. In his affirmation, the applicant stated he did not agree with the decision of the Board and wanted to seek judicial review. He said he could not go back to his home country because his life was still in danger over there.

8.  On 24 June 2021, the applicant attended a hearing of his application before the Judge. He had submitted two pages of written submissions to the court beforehand, and at the hearing he said that was all he wanted to say. The Judge handed down his decision, as set out in the Form CALL-1, on 5 July 2021, refusing to grant leave to apply for judicial review, for these reasons:

“10.  On 28 September 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely stated that his life would still be in danger in his home country but without putting forward any proper grounds for his intended challenge, nor did he at the hearing of his application other than submitting a 2-page statement in which he complained of being detained by the Immigration Department without reasons and that it was unfair and unreasonable for the Director or the Board not to accept his claim as true and genuine but without any details or particulars or elaborations how they were so, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11.  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.

12.  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 50 - 54 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.  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 the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.

14.  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.

15.  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.”

9.  On 15 July 2021, the applicant filed a summons together with an affirmation. Both documents stated as follows:

“I would like to apply judicial review summons because I don’t agree with the decision of Torture Claim Appeal Board, H.K. Immigration Department and Judicial Review Form 86. I can’t go back to my home country Pakistan because my life is still in danger over there.”

10.  This summons came before the Judge, who considered it to be an attempt by the applicant to re-litigate his case and therefore an abuse of process. Dealing with it on paper without a hearing, on 5 October 2021, the Judge issued a decision to strike out and dismiss that application.[6]

11.  On 20 January 2022, the applicant filed another summons in the Court of First Instance, seeking, among other things, leave to appeal against the Judge’s decision dated 5 July 2021. In his supporting affirmation, the applicant stated:

“I have lodged summons on 15 July 2021 against the refusal of my application under HCAL 1948/2020 within the time period. … In the circumstances, I request the court to consider granting my leave to appeal against the decision of DHCJ Bruno Chan dated the 5^th day of July 2021.”

12.  The Judge held the hearing of this application, attended by the applicant, on 9 February 2022. At the hearing the applicant simply pleaded to be released from custody so that he could find further documentary evidence in support of his non-refoulement claim.

13.  On 23 February 2022, the Judge handed down his decision in writing.[7] The Judge was not satisfied that the applicant had provided any good reason for his delay in filing an appeal. More importantly, the Judge noted that the applicant had not put forward any proposed grounds of appeal or particulars of the error in the decision attacked, and took the view that there was no prospect in the intended appeal. The summons was accordingly dismissed.

The application in this court

14.  By summons filed on 12 April 2022, the applicant has renewed his application for extension of time to appeal against the Judge’s decision dated 5 July 2021 refusing leave to apply for judicial review. In the affirmation filed in support, the applicant stated [sic]:

“I am the Applicant herein. Leave me granted to me to appeal against the decision dated the 23 February 2022. I would like to appeal out of time as I was unaware of the rules and was unrepresented. The decision made by the High Court Judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. …”

15.  Despite the directions given by the Registrar of Civil Appeals for the lodging of written submissions, the applicant has not to date lodged any written submissions.

16.  Having considered the materials available, we consider it appropriate to determine the applicant’s summons on paper without an oral hearing pursuant to Order 59 rule 14A of the Rules of the High Court (Cap 4A).

17.  By virtue of Order 53 rule 3(4) of the Rules of the High Court, after the Judge refused leave to apply for judicial review on 5 July 2021, the applicant could appeal to the Court of Appeal within 14 days. The applicant did not do so, but filed the summons in the court below referred to in paragraph 9 above on 15 July 2021. Having regard to the fact that the applicant was unrepresented and in custody, we are prepared to give the applicant the benefit of the doubt and proceed on the basis that his summons of 15 July 2021 was an honest mistake and that he had in fact wanted thereby to appeal the Judge’s decision. That summons was in fact filed within 14 days of the decision, though it should have been filed in the Court of Appeal and sought to appeal the decision of the Judge. Accordingly, we would focus not so much on the delay in filing the summons for extension of time to appeal as on the merits of the intended appeal to see if the extension of time sought should be granted.

18.  The applicant claims, as stated in his affirmation in this court, that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and the situation in his country. In our view this is not borne out by the record at all. The applicant had the opportunity of lodging written submissions and appearing before the Judge for his application, and raising anything relevant to his case. The application before the Judge was one for leave to apply for judicial review. The primary decision-maker in respect of the applicant’s non-refoulement claim was the Director and, on appeal, the Board. The Board, after conducting an oral inquiry, found that the applicant’s claim was not credible in its core aspects, and further found that internal relocation would be a reasonable and viable option even if there was a real risk of harm from the applicant’s uncle. These findings are within the province of the Board. Full and rational reasons were given by the Board. Under the law that decision is the final decision on the merits of the applicant’s non-refoulement claim.

19.  Judicial review is not a further avenue of appeal for the court to come to a second opinion on the applicant’s non-refoulement claim. The court’s limited function in judicial review is to see if there are public law errors in the decision-making process, such as illegality or other misdirection in law, procedural irregularity or unfairness, and irrationality in the actual decision in the sense that it is so unreasonable that no reasonable decision-maker would have arrived at it. If there are such errors vitiating the Board’s decision, the court may quash the decision and remit the case to the Board. At the leave stage, the judge’s function is to see whether there is a realistic prospect of success in the proposed judicial review.

20.  Apart from pleading for his release from custody in order to find further documents in support of his case, the applicant had wholly failed to identify any public law error in, or proper ground for judicial review of, the Board’s decision. In our opinion the Judge cannot be faulted for finding, for the reasons he gave, that there was no reasonably arguable case in judicial review. He was correct to refuse leave to apply for judicial review. The intended appeal against his decision has no prospect of success.

21.  For these reasons, the applicant’s summons for extension of time to appeal is dismissed.