ATIQ AHMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 478/2021, [2023] HKCA 1324

On Appeal From [2021] HKCFI 1864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 478 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2750 OF 2018)

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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 for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) dated 12 July 2021 refusing leave for the applicant to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board (“Board”) dated 8 November 2018. In that decision, the Board dismissed the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 22 December 2015 and 14 December 2016 respectively rejecting his non-refoulement claim.

Background

2.  The applicant is a national of Pakistan born in 1981. He claims to have sneaked into Hong Kong on 21 April 2007. He was arrested by the police in Hong Kong as an illegal immigrant on 10 March 2008, and made a torture claim shortly thereafter. His torture claim was rejected on 22 March 2012, and the applicant’s petition was rejected by the adjudicator on 17 May 2012. The applicant made a further claim for non-refoulement protection by written representation dated 2 May 2014, on the ground that if he returned to Pakistan, he would be ill-treated, tortured and persecuted by two robbers affiliated with the police in Pakistan. The details of his claim are set out at [2] to [9] of the Board’s decision.

3.  The applicant’s claim was first assessed by the Director with reference to BOR 3 risk[1] and persecution risk,[2] and subsequently with reference to BOR 2 risk.[3] By notices of decision dated 22 December 2015 and 14 December 2016 respectively, the Director rejected his claim.

4.  The applicant appealed to the Board against the Director’s decisions. The Board held an oral hearing on 20 February 2017, at which the applicant gave evidence and answered the Board’s questions. The applicant’s case was that he would be harmed by the robbers who robbed him and his employer back in March 2006 as they wanted to compel him to withdraw the complaint to the police about the robbery. Having considered all the circumstances, the Board took the view that the robbers would have little if any motivation to harm the applicant after all these years. Further, the Board considered that reasonable state protection would be available to the applicant, and that internal relocation was viable and would be effective to avoid any harm from the robbers. The Board concluded that the applicant had failed to establish that he would be at risk of the proscribed harm if he returned to Pakistan. Accordingly, in its decision dated 8 November 2018, the Board dismissed the appeal and affirmed the decisions of the Director.

The Judge’s decisions in the court below

5.  On 4 December 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. The grounds raised in the accompanying affirmation were summarised by the Judge at [12] of the Form CALL‑1 as follows:

“ 12. In his affirmation in support of his application, he submitted that the Board’s Decision was wrong. He set out the grounds as follows:

(1) the Board had wrongly assessed his case, such as that state protection was available to him to reduce his risk;

(2) the Board had placed undue weight on the country of origin information (“COI”) against his case;

(3) he was not provided with legal advice or representation;

(4) language assistance was not provided for him;

(5) the Board was wrong to give no credence to his evidence;’

(6) the Director had not given explanation as to why he accepted the COI against his case more than those in his favour;

(7) he was given the hearing bundle but no one explained the contents to him, same situation in relation to the Board’s Decision;

(8) he reserved his right to explain the case to court.”

6.  The Judge held a hearing on 18 June 2021, but the applicant failed to attend. The Judge issued his decision on 12 July 2021, refusing to grant leave to apply for judicial review. The reasons were set out at [13] – [17] of the Form CALL‑1 as follows:

“ 13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. His grounds in support of this application can be dealt with below:

(1) Grounds (1), (2), (5) are his opinions without any evidence in support of them;

(2) Ground (3) fails because the Court of Appeal held that he is not entitled to free legal representation or advice at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage. See Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 1 78 [22]; Re Ali Haider [2018] 222 [12]; Re Miah Mohammad Sahin [2020] HKCA 982 [24];

(3) Ground (4) and Ground (7) fail because the Court of Appeal held that high standards of fairness do not demand interpretation service being made available all the time to him. See Re Sattar Abdul [2019] HKCA 613, 4 June 2019 [13];

(4) Ground (6) is a complaint against the Director, which should be determined by the Board; however, the Director in his Decision had given his reasons for his decision; and

(5) Ground (8) is unfounded because he did not attend at the hearing himself.

15. In Re Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. .… …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.’

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.”

7.  The applicant did not appeal within the period of 14 days prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A). Instead he filed a summons in the Court of First Instance on 16 September 2021 seeking an extension of time to appeal. In the accompanying affirmation the applicant said that he received the notice of the hearing on 18 June 2021 but he was arrested by the police and detained in Lai Chi Kok reception Centre for three months. Inquiries made by this court have confirmed that the applicant was on remand in the custody of the Correctional Services Department between 11 June and 7 September 2021.

8.  The judge dealt with the application on the papers. On 12 October 2021, the Judge handed down his decision in writing, refusing to grant an extension of time on the ground that there was no realistic prospect of success in the intended appeal.

The renewed application before this Court

9.  By summons filed in this court on 21 October 2021, the applicant made another application for extension of time to appeal against the decision of the Judge refusing to grant leave for judicial review. In his affirmation he stated he was not able to attend the hearing before the Judge because he was detained in Lai Chi Kok Reception Centre. He repeated the points about not having legal or language assistance.

10.  In his written submissions, the applicant again claimed he had been deprived of the opportunity to understand the judgments and to raise proper grounds of appeal.

11.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  Given that the delay in taking steps to appeal was contributed to by the applicant’s detention in 2021, we shall focus on the question whether there are sufficient merits in the intended appeal to justify an extension of time.

13.  In the present case, the Board rejected the applicant’s non-refoulement claim because it did not consider the applicant would still be exposed to harm so many years after the robbery in 2006. The Board also considered that state protection and the option of internal relocation would be available to the applicant. The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision. It has to be borne in mind that judicial review is not a further avenue of appeal. The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision. The applicant has failed to establish or even identify any such public law grounds.

14.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced. The applicant has failed to advance any grounds to show how the Judge is said to have erred in refusing to grant leave for judicial review. As to the complaints about lack of language and legal assistance, the judge has dealt with them and there is no error in principle in his approach. All the documents filed by the applicant below and in this court were written in English, suggesting that he is either conversant with the English language or has had access to language assistance where necessary. We do not consider that the process below has been rendered unfair.

15.  We do not see any prospect of success in the intended appeal. The applicant’s summons is accordingly dismissed.