TAHMOOR HUSSAIN v. TORTURE CLAIMS APPEAL BOARD

CAMP 144/2023, [2024] HKCA 291

On Appeal From [2022] HKCFI 1678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 144 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 239 OF 2022)

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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 Bruno Chan (“Judge”) dated 6 June 2022[1] refusing to grant extension of time for the application for leave to apply for judicial review and refusing to grant leave for the applicant to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 17 July 2019.  In that decision, the Board acceded to the applicant’s withdrawal of his appeal to the Board against the decision of the Director of Immigration (“Director”) dated 30 November 2018 rejecting his non-refoulement claim.

2.  On 16 March 2023, the Judge refused to extend time for the applicant to appeal against his decision of 6 June 2022.

Background

3.  The applicant is a national of Pakistan born in 1985.  He had entered Hong Kong illegally on 25 September 2015 and was arrested by the police on the same day.  He lodged his non-refoulement claim on the basis  that he would be harmed or killed by supporters of the Pakistan Muslim League (Nawaz) (“PML(N)”) due to his allegiance to the opposite political party, Pakistan Tehreek-e-Insaf (“PTI”), if he was refouled to Pakistan.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]  By a notice of decision dated 30 November 2018, the Director rejected the claim.

5.  The applicant appealed to the Board against the Director’s decision on 10 December 2018.  By letter dated 17 June 2019, however, the applicant applied to withdraw his appeal/petition against the Director’s decision.  On 9 July 2019, the Board sought clarifications in writing from the applicant and the applicant replied by letter dated 15 July 2019 confirming the withdrawal and his understanding of the procedures.  After consideration of the applicant’s letters, the Board was satisfied that the applicant’s request to withdraw his appeal was freely sought and that he understood the consequences of the withdrawal.  The Board was also satisfied that there was good reason for the withdrawal, namely that the applicant considered it safe for him to return to Pakistan.

6.  Therefore, on 17 July 2019, the Board acceded to the applicant’s withdrawal of his appeal and directed that the Director’s decision of 30 November 2018 was confirmed.

The Judge’s decisions in the court below

7.  Notwithstanding his own withdrawal of the appeal, long after the expiry of the 3-month time limit for judicial review prescribed by Order 53 rule 4(1) of the Rules of the High Court (Cap 4A), on 21 April 2022, the applicant sought leave from the Court of First Instance to apply for judicial review against the Director’s decision.  In his supporting affirmation, the applicant stated that he was not satisfied with the Director’s decision and his life was still in danger.  He also exhibited a one-page handwritten statement containing his claims for non-refoulement protection, the reasons why his life would not be safe, and a description of his injuries from previous incidents.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 6 June 2022, the Judge issued his decision to refuse to extend time for the application for leave to apply for judicial review and to refuse to grant leave to apply for judicial review.  The reasons were set out in [12] to [17] of the Form CALL-1 as follows:

“ 12. In the Applicant’s case, a delay of more than 2 ½ years must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

13. As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality 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 or merits in his intended application either.

14. 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.

15. In the Applicant’s case, the Board dismissed his appeal at his own request and his written confirmation that it was safe for him to return to his home country upon being satisfied that he knew what he was doing, that he was fully aware of the consequences of the withdrawal, and that he had good reason to do so before dismissing his appeal and confirming the Director’s decision which has the effect of having finally determined and disposed of his non-refoulement claim, as it was so held by the Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, as it was stated at [41] of the judgment:

“ Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal … s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.”

16. As noted above, in the absence of any error of law or irrationality or procedural unfairness in the Board’s decision to allow the Applicant’s request to withdraw his appeal and by disposing of it accordingly by dismissing it and confirming the decision of the Director in rejecting his non-refoulement claim, I do not find any fault in the Board’s decision, and upon considering the decision of the Director with rigorous examination and anxious scrutiny, nor do I find any error of law or procedural unfairness or any failure on the part of the Director to apply high standards of fairness in his consideration and assessment of the Applicant’s non-refoulement claim.

17. Furthermore, the fact is that it has been correctly 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.”

9.  About 5 months after the expiry of the 14 days’ time limit, the applicant filed a summons on 1 December 2022 together with a supporting affirmation to apply for extension of time for the appeal.  On 16 March 2023, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any realistic prospect of success in his intended appeal.

The renewed application before this Court

10.  By summons filed on 4 April 2023, the applicant made a further application to this Court for extension of time for appeal.  We shall treat this as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 6 June 2022 refusing leave for judicial review. 

11.  In the applicant’s supporting affirmation, he stated that he did not agree with the Judge’s decision and he did not receive the letter from the Court of First Instance, without any further elaboration or supporting details.

12.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 4 April 2023.  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

13.  The applicant was late for about 5 months when he filed his summons below on 1 December 2022.  In his supporting affirmation, the applicant stated that he did not receive the Judge’s decision “on time” with no further explanation or elaboration.  We are of the view that this was substantial delay with no proper justification provided.  The applicant needs to show real prospects of success in the intended appeal before we should grant an extension of time.

14.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing 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 the appeal were a fresh application for judicial review.

15.  As this Court pointed out in Re Das Purnima Rani [2019] HKCA 669 at [41], once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal.  The only option left to a claimant who has validly withdrawn his or her appeal is to make a fresh non-refoulement claim under section 37ZO(2) of the Immigration Ordinance (Cap 115) if the requirements of that section are met.  We note that the Judge had correctly considered this at [15] in his decision of 6 June 2022.

16.  In the present case, the applicant has not contested the validity of the withdrawal of his appeal and the Board’s acceptance of his withdrawal.  In his affirmation in support of his Form 86, he merely stated that his life was still in danger and he repeated his claims for non-refoulement.  In the circumstances, he has not provided an adequate basis for invalidating the withdrawal of his appeal.  Given he voluntarily withdrew his appeal to the Board, there was no reason to entertain an application for judicial review of the Director’s decision which should be challenged by appeal to the Board.

17.  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 dismissing his application for leave to apply for judicial review.  Nor has the applicant identified any viable ground of appeal against the Judge’s decision. 

18.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused.  The applicant’s summons dated 4 April 2023 is accordingly dismissed.