RE AFZAAL MUHAMMAD

CAMP 3/2022

[2022] HKCA 507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 290/2019)

____________________

____________________

___________________

J U D G M E N T

___________________

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

1.  This is an application for extension of time to appeal against the decision of DHCJ Suffiad (“the Judge”) dated 4 November 2021 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/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 17 January 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 5 September 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Pakistan.  He arrived in Hong Kong on 16 February 2010 as a domestic helper, but he overstayed and subsequently surrendered himself to the Immigration Department on 25 May 2017.  The applicant thereafter lodged a non-refoulement claim on 4 October 2017.

3.  The applicant’s claim was based on a fear of being harmed or killed by Shia Muslims if he was refouled to Pakistan.  The details of the applicant’s claim have been summarised by the Judge at [4] to [8] of his decision (“the CALL‑1 Form”)[1].

4.  By a Notice of Decision dated 5 September 2018, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 4 December 2018, the Board dismissed the appeal on 17 January 2019.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board rejected the applicant’s claims regarding his fears, which it did not find to be credible.

The Judge’s decision

6.  The applicant filed a Form 86 on 31 January 2019 seeking to judicially review the Board’s Decision without setting out any grounds of review.  In his supporting affirmation, he simply exhibited the Board’s and the Director’s Decisions as well as the hearing bundle.

7.  After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [21] to [29] of the CALL‑1 Form:

“21.  The relevant principles on appeals in non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

22.  When the Applicant pursued his appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore while the court examines the decision of the Director and that of the Board, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

23.  In the present case, the Board did not take issue with the personal and family background of the Applicant accepting them as true.  The Board however disagreed with the Applicant on the assessment of the risk to the Applicant as perceived by the Applicant, quite apart from its assessment as to the credibility of the Applicant.

24.  The Board further found that state protection and internal relocation to be available to the Applicant based on the COI material. 

25.  It has been said time and again that findings of primary facts, risk of harm, availability of state protection as well as internal relocation are primarily the province of the Board and the Director and is not for this court to usurp those functions of the Board unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

26.  The present complaint raised by the Applicant in his Form 86 contains nothing to indicate any error of law, procedural unfairness or irrationality in the decision of the Board.

27.  Having gone through the decision of the Board carefully and thoroughly, it can be seen that the Board has considered all four available grounds (on which this non-refoulement claim is brought) separately and distinctly, dealing with the merits of each limb individually.

28.  The decision reached by the Board cannot be said to be in any way unreasonable.  Nor can the court see any error of law, procedural unfairness or irrationality in the decision of the Board and the reasons given.  There is no reasonably arguable basis to challenge the findings of the Board.

29.  For the reasons given, there are no prospects of success in the Applicant’s intended application.  Accordingly, the court refused to grant leave for judicial review.”

The present application for extension of time to appeal

8.  The applicant’s address as stated in his Form 86 was at Woosung Street, Jordan (“the Woosung Street Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Woosung Street Address on 4 November 2021.  This letter was not returned undelivered.  

9.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 4 November 2021.

10.  The applicant took out a summons in the Court of First Instance on 22 November 2021 seeking extension of time to appeal, in which his address was also stated to be the Woosung Street Address.  His stated in the summons and his supporting affirmation that he did not receive the CALL-1 Form in time.

11.  The applicant’s application to appeal out of time was dismissed by DHCJ K W Lung on 23 December 2021[6].

12.  By a summons filed on 4 January 2022, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and his supporting affirmation, the applicant simply asked this court to grant him an extension of time.

13.  In the applicant’s written submissions dated 18 January 2022, he repeated his fears and dangers if returned to Pakistan, stated that the court was wrong to reject his claim, was wrong not to give him a “lawyer” or “enough time”, and complained that all non-refoulement claims were dismissed.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

15.  The applicant has proffered no reason or explanation for the delay in bringing the intended appeal.  The letter sent to his last known address was not returned undelivered.  In fact, his address had remained the same when he took out the application for extension of time in the court below.  

16.  In the circumstances, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.

17.  We have nonetheless proceeded to consider the merits of the intended appeal.

18.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

19.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

20.  Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)]. 

21.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.  We note that in this case, the applicant has had the benefit of legal representation from the Duty Lawyer Service in presenting his case to the Director, including the submission of his non-refoulement claim form and at his screening interview.  This court has repeatedly held that it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  It suffices for legal representation to be provided at the initial stage, with subsequent legal representation being provided on a merits basis.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

23.  Further, there is no merit in the complaint that he was not given time.  There is no indication of any prejudice alleged to have been suffered.  The allegation that all non-refoulement claims are dismissed is simply unfounded.

24.  For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal.  The summons filed on 4 January 2022 is accordingly dismissed.