DAR MUHAMMAD ASIF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 27/2023, [2023] HKCA 468

On Appeal From [2023] HKCFI 234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 27 OF 2023

(ON APPEAL FROM HCAL NO 269 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 appeal against the decision of Deputy High Court Judge To (“Judge”) dated 2 February 2023 refusing to grant the applicant leave to apply for judicial review.  The intended judicial review is directed against the decisions of both the Director of Immigration (“Director”) and the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) in respect of the applicant’s non-refoulement claims. 

Background

2.  The applicant is a national of Pakistan, born in 1981.  He was arrested in Hong Kong on 11 January 2010 as an illegal immigrant.  He raised a torture claim on 14 January 2010, based on the fear that if he returned to Pakistan, he would be harmed or killed by Sharbir and his sons because of their disapproval of the applicant’s love affairs with Sharbir’s daughter.  That claim was assessed by the Director with reference to three applicable risks, namely, BOR 3 risk,[1] persecution risk,[2] and torture risk.[3]  By a Notice of Decision dated 2 December 2014, the Director rejected the applicant’s claim (“Director’s first decision”).

3.  The applicant appealed that decision to the Board, but by a subsequent letter dated 28 October 2015, issued shortly before the scheduled hearing of the appeal on 10 November 2015, the applicant stated that he wanted to go back to Pakistan because his problem had been solved and he would be safe there, and that he wanted to withdraw his non-refoulement claim in Hong Kong and the appeal against the Director’s decision.  Accordingly, by letter dated 29 October 2015, the Board notified the applicant that his appeal was dismissed and that the Director’s first decision was confirmed.

4.  The applicant was repatriated to Pakistan on 13 May 2016.  However, he was in Hong Kong illegally again in 2021, and surrendered to the Immigration Department on 6 December 2021, claiming that he had entered Hong Kong illegally on 1 July 2021.  On 13 January 2022 he made a written request to the Director for leave to make another claim for non-refoulement protection.  The intended new claim was based on the fear that he would be harmed and killed by Sharbir’s sons (Sharbir having passed away), because of his previous love affair with their sister.  After considering the applicant’s further letter dated 10 February 2022 providing further information at the Director’s request, the Director rejected the request in a Notice of Decision dated 21 March 2022 (“Director’s second decision”), taking the view that the matters relied upon by the applicant did not constitute any significant change of circumstances since the determination of his previous claim.

The Judge’s decisions in the court below

5.  On 27 April 2022, the applicant sought leave from the Court of First Instance to apply for judicial review.  The decisions challenged were stated to be the Director’s decisions dated 14 January 2010 (there was in fact no such decision), and dated 2 December 2014 and 21 March 2022 respectively, and the Board’s decision dated 28 October 2015 (which was plainly a reference to the Board’s decision of 29 October 2015).  The applicant stated in the Form 86 that the Director and the Board reached their decisions wrongly in assessing his claims, and that the decisions were not reasonable and fair.

6.  The Judge held a hearing of the application on 10 January 2023, at which the applicant appeared and answered the Judge’s questions.  On 2 February 2023 the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out at [20] – [36] of the Form CALL‑1 as follows:

“ 20. The 2014 Notice was issued on 2 December 2014. The Applicant appealed to the Board and then applied to withdraw his appeal on 28 October 2015 because he wanted to return to Pakistan and it was safe for him to return. The Board allowed his application to withdraw at his request and issued the Decision on 29 October 2015. He was repatriated on 13 May 2016.

21. The Applicant did not apply for leave to apply for judicial review of the 2014 Notice until 27 April 2022, almost seven years and four months after the notice was issued. By then, he was more than seven years out of time for seeking leave to apply for judicial review under Order 53, rule 4(1) of the Rules of the High Court. The delay is very substantial. For all that this Court knew from his request, he had no explanation for the delay. By reason of his very substantial delay and total lack of explanation alone, extension of time will not be granted for him to file this application, however strong his complaint might otherwise be: see Po Fun Chan v Winnie Cheung[4].

22. The Applicant has advanced no particulars of the unfairness in his grounds for judicial review. On the fact, he appealed against the 2014 Notice, then withdrew his appeal and voluntarily returned to Pakistan. Such conduct is inconsistent with any complaint of unfairness. The Applicant agreed at the hearing that he has no complaint against the 2014 Notice.

23. Furthermore, there are statutory procedures to challenge such a notice by way of appeal to the Board and the Applicant had invoked those procedures, though he subsequently withdrew his appeal. The 2014 Notice issued by the Director is not amenable to judicial review.

24. For all these reasons, leave to apply for judicial review of the 2014 Notice is refused. This is a clear case of abuse of legal process.

25. As mentioned in the above section, the Applicant appealed against the 2014 Notice and then applied to withdraw his appeal. On 29 October 2015, the Board issued the Decision allowing his application to withdraw. For the same reason as stated in paragraph 22, his subsequent withdrawal of the appeal and voluntary repatriation to Pakistan is inconsistent with any complaint of unfairness. It is also difficult to see how the Board could have acted unfairly in allowing his application at his request. When this was put to the Applicant at the hearing, he agreed.

26. Furthermore, the proper way to challenge the Decision is to apply to the Court of First Instance to have it set aside on the ground of nullity in that the Applicant’s application to withdraw was not a deliberate and informed decision: see Ali Usman[5] and HT (Hussain Tasawar) v Betty Kwan[6]. But there is not the least suggestion by the Applicant that his decision to withdraw was not a deliberate and informed one.

27. In addition, the application is six years and three months out of time. The delay is very substantial and un-explained. On this reason alone, leave to apply may be refused under the principle in Po Fun Chan v Winnie Cheung.

28. For all these reasons, leave to apply for judicial review of the 2015 Notice is refused. This is a clear case of abuse of legal process.

29. It is accepted that the decision of an immigration officer made under section 37ZO(5) refusing a request to make a subsequent application for non-refoulement protection is not appealable to the Board but is amenable to judicial review. An aggrieved claimant may seek judicial review of such a decision on the grounds of error of law, procedural unfairness and irrationality. The Applicant’s grounds for judicial review are unfairness, but he gave no particulars. Thus, this Court would scrutinize the 2022 Notice for errors of law, procedural unfairness and irrationality in the decision.

30. In his affirmation, the Applicant agrees that the immigration officer has stated all the details of his claim in the decisions, ie the 2014 Notice and 2022 Notice. As already explained, the finding of facts in the 2014 Notice is now final and binding on the Applicant. The immigration officer assessed the Applicant’s intended subsequent claim on the basis of the case as he asserted. Thus, there could be no complaint about the immigration officers’ finding of primary facts. The Applicant’s complaint is about the immigration officer’s finding of secondary facts and assessment of his entitlement to make a subsequent claim under section 37ZO of the Immigration Ordinance.

31. The immigration officer considered the Applicant’s case illogical, ie inherently improbable. In view of the long lapse of time of sixteen years, the intention to kill the Applicant would have dissipated. Indeed, according to the Applicant, Sharbir guaranteed that he and his son would not kill or harm the Applicant. Sharbir honoured his part of the guarantee until his death. There was no evidence that the Applicant maintained contact with Shumaila as would provoke Sharbir’s sons to attack him. The Applicant also made a very serious allegation of the police colluding with Sharbir’s sons to detain him in the police station for three days and to torture him. But he gave no particulars of the torture. Understandably, a claimant may have difficulties in collecting the evidence in support of his claim. Usually, the immigration officer would assess an applicant’s claim on the basis of the case as he asserted. This does not mean in an appropriate case he may not hold any doubts about the veracity of the claimant’s case and his credibility. On the objective facts, the immigration officer considered the Applicant’s case inherently improbable. Not only is the Applicant’s case unsupported by credible evidence, it is lacking in particulars. In the circumstances, it was reasonable for the immigration officer to request for further detail or evidence of the alleged incidents to support his claim. But the Applicant did not provide any.

32. At the hearing, the Applicant explained that he was unable to produce the evidence because he was in custody and asked for a couple of months to provide the evidence. He had five years in between his return to Pakistan and his entry to Hong Kong. In the immediate three years before coming to Hong Kong, he had been travelling between Pakistan and China claiming he was in fear of his safety. He made up his mind to fled to Hong Kong to seek protection. That was his second trip to Hong Kong and is his second claim for protection. There is no reason why he did not prepare for the evidence in advance. Furthermore, his detention is no explanation for his failure to even provide the particulars of his claim. He had a whole month while in custody to prepare those particulars, but he did not do so. He has no reasonable explanation for his failure.

33. He also prayed in aid his lack of legal assistance in making his request. In Re Zafar Muazam[7], Re Zunariyah[8], Re Zahid Abbas[9], Re Tariq Farhan[10], and Re Lopchan Subash[11], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[12] nor the judgment of FB v. Director of Immigration[13] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The Applicant was legally represented in prosecuting his previous claim up to the conclusion of the screening interview. In relation to his request, he had been advised by the immigration officer of the availability of the Duty Lawyer Service, but he chose not to avail himself of that service. His lack of legal assistance cannot be an explanation for his failure to provide particulars or evidence in support of his request. Nor can it constitute any attack on the 2022 Notice on the basis of procedural unfairness.

34. Section 37ZO mandates the immigration officer to take into account the circumstances and finding of facts under the previous claim. The officer took into account the finding that state protection and internal relocation are available and could avoid or reduce the risk. Obviously, he must also have taken into consideration the finding that the injuries suffered by the Applicant were not serious and the risk of harm was low. Then, having considered all the information and evidence available, including the findings in relation to his previous claim, he came to the conclusion that there has been no significant change of circumstances since the previous claim was finally determined or withdrawn and that the change when taken together with other materials submitted in support of the previous claim would not give the Applicant’s intended subsequent claim a realistic prospect of success.

35. Having rigorously examined the 2022 Notice, the request and the evidence with anxious scrutiny, the Court is satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO; correctly identified the issues; and properly analysed the evidence. The immigration officer had observed a very high standard of fairness. He had advised the Applicant on the law and procedure and the availability of the Duty Lawyer Service in prosecuting his request. He found the Applicant’s case lacking in particulars, unsupported by evidence and inherently improbable. He found the Applicant had failed to prove there was significant change in circumstance as would entitle the Applicant to make a subsequent claim. Particularly, he noted the finding in the previous claim that state protection and internal relocation are available and could avoid or minimize the risk. It was on that basis that the immigration officer found the change in circumstance when taken together with the material previously submitted in support of the previous claim would not give the intended subsequent claim a realistic prospect of success.

36. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no error of law in the decision.  The decision in the 2022 Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational. The decision in the 2022 Notice is utterly without fault.  The proposed judicial review has no realistic prospect of success.”

The appeal to this Court

7.  By notice of appeal filed on 2 February 2023, the applicant appeals against the decision of the Judge.  In that document, the applicant simply states that he does not agree with the court’s decision.  At the same time when he lodged the notice of appeal, the applicant also gave written confirmation that he consented to the appeal being disposed of on paper without an oral hearing. 

8.  In his written submissions lodged on 17 February 2023, the applicant states that he has “life threat” in Pakistan and that the situation in his country is very bad, the police are corrupt and the other government departments are behind the police. He states that he was trying to fight against corruption but could not stand against them.  He states that he does not know why the court dismissed his application for leave to apply for judicial review.

Discussion

9.  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 or the Director.  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 or the Director afresh as if the appeal were a fresh application for judicial review.

10.  Since the applicant confirmed at the hearing before the Judge that he has no complaint against the Director’s first decision of the Board’s decision allowing him to withdraw his appeal in 2015, there is plainly no ground for judicial review of these two decisions, quite apart from the fact that the applicant was years out of time when he filed the Form 86 in April 2022.

11.  The Director’s second decision is a decision under section 37ZO of the Immigration Ordinance (Cap 115), which regulates subsequent non‑refoulement claims and provides:

“ 37ZO. Limitation on subsequent claim

(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

…”

12.  The Director decided that the matters relied upon by the applicant for making another claim did not constitute any significant change of circumstances since the determination of his previous claim.  The Judge has given very detailed reasons, as quoted above, for his conclusion that there is no reasonably arguable ground for judicial review of the Director’s second decision.  The applicant has wholly failed to identify any error in the Judge’s reasoning or any other ground of appeal.  For the reasons given by the Judge, we two think that there is no ground for judicial review of the Director’s second decision.

13.  Accordingly, we do not see any merit in the appeal, which is dismissed with no order as to costs.

[1]   This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[2]   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 and its 1967 Protocol.

[3]   This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[4]   (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[5]   [2018] HKCA 955

[6]   [2017] 2 HKLRD 567

[7]   cacv 2/2018, (unreported) 23 March 2018

[8]   [2018] HKCA 14

[9]   [2018] HKCA 15

[10]   [2018] HKCA 17

[11]   [2018] HKCA 37

[12]   (2004) 7 HKCFAR 187

[13]   HCAL 51 of 2007