RE BUTT KAMRAN ALIAS IMRAN ARSHAD

CAMP 196/2022, [2024] HKCA 119

On Appeal From [2022] HKCFI 754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 196 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2375 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 21 March 2022 [1] 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 26 October 2018. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 28 December 2016 rejecting his non-refoulement claim.

2.  On 14 June 2022, the Judge refused to extend time for the applicant to appeal against the Judge’s decision of 21 March 2022.

Background

3.  The applicant is a national of Pakistan born in 1982.  According to records of the Immigration Department, he had first entered Hong Kong on 4 September 2001 as a visitor and was permitted to stay until 18 September 2001.  He overstayed and was arrested by the police on 27 December 2004.  The applicant initially reported a false identity of “Amir Nazir Waraich”, but it was later revealed that his true identity was “Imran Arshad”.  He was convicted and imprisoned.  After release, he was removed from Hong Kong to Pakistan on 22 June 2005 under a removal order.

4.  After removal to his home country, the applicant claimed that he had legally changed his name from “Imran Arshad” to “Butt Kamran” and changed the birth date on his passport.  He claimed that the Pakistani authorities informed him that his correct date of birth should be 1982 and not 1975.

5.  The applicant claimed that he left Pakistan on 7 June 2013 for Mainland China on the strength of his Pakistani passport from which he subsequently entered Hong Kong illegally, where he was intercepted by police on 11 June 2013.  His formal non-refoulement claim form dated 8 September 2015 was submitted on the basis that he would be harmed or killed by members of the Muslim League N Party (“PMLN”), namely Rafique Jut and Safdar Awan, due to his political affiliation with the Muslim League Q political party (“PMLQ”)  if he were refouled to Pakistan.

6.  The applicant’s claim was initially assessed by the Director with reference to three relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] and torture risk.[4] By a notice of decision dated 2 December 2015, the Director rejected the claim.

7.  The applicant appealed to the Board against the Director’s decision dated 2 December 2015.  The Board held an oral hearing of the appeal on 20 September 2016, at which the applicant gave evidence and answered questions from the Board.  A forensic medical report of the applicant was obtained in relation to the injuries allegedly sustained by the applicant in Pakistan and that forensic medical practitioner was also present at the hearing to give evidence.  In its decision dated 18 November 2016, the Board dismissed the appeal and affirmed the decision of the Director dated 2 December 2015.  It appears that the applicant did not and still does not seek to apply for judicial review of the Board’s decision dated 18 November 2016.

8.  The applicant’s claim was also assessed by the Director with reference to BOR 2 risk[5] under the newly established Unified Screening Mechanism at the time.  By letter dated 29 November 2016, the Director invited the applicant to submit additional facts, if any, relevant to his non-refoulement claim under BOR 2.  The applicant sent a letter to the Director on 9 December 2016 and the Director considered that there was no new information submitted to further substantiate his claim.  By a notice of decision dated 28 December 2016, the Director rejected the claim.

9.  The applicant appealed to the Board against the Director’s decision dated 28 December 2016.  The Board did not hold an oral hearing, because it considered that he had not raised any new or additional facts and events relevant to BOR 2 risk to support his claim.  In its decision dated 26 October 2018, the Board dismissed the appeal and affirmed the decision of the Director dated 28 December 2016.

10.  The Board’s reasoning in its two decisions was summarised by the Judge at [8] to [10] of the Form CALL-1:

“  8.  The applicant first appealed the Director’s First Decision to the Board.  On 20 September 2016, the Board held an oral hearing for the applicant’s appeal, during which the Board called a doctor’s report on the applicant’s injuries and the doctor also attended the hearing to give evidence [6].  The applicant was given the opportunity to clarify his case before the Board with the assistance of an interpreter and was allowed to cross-examine the doctor.  But he had no questions for the doctor [8]-[10].

9.  The Board summarized the doctor’s evidence and his finding [11]-[19]. On the doctor’s evidence, he was unable to prove or disprove whether the applicant had been beaten on his back, the soles of his feet and on his shins and ankle areas.  He also could not measure the pain suffered from the assaults as it was a subjective matter [19].  Having considered the applicant’s evidence, the Board did not find him to be a credible witness [70]-[71].  For example, the applicant claimed to be experienced in PMLQ but gave conflicting evidence regarding the election; the applicant and his family continued to live in the family house one or two months after the alleged shooting incident; the Board also found his evidence on the report to the police, the identities of the men shooting his house, the injuries and the kidnapping incident vague and improbable [72]-[82].  Thus, the Board refused to accept him as a credible witness.  The Board further found that internal relocation was available to the applicant [84]-[95].  In assessing the individual grounds, the Board found that the applicant, taken his evidence at the highest, was only beaten up by the police when he breached their warnings.  Nevertheless, in light of the Board’s finding on internal relocation, such risk could be eliminated if he relocated to other areas [96]-[110].  As a result, the Board rejected his claim on Torture risk, BOR3 risk and Persecution risk and dismissed his appeal against the Director’s First Decision.

10.  Insofar as the applicant’s appeal against the Director’s Second Decision is concerned, the Board found that such appeal was not substantiated in light of the findings contained in the Board’s First Decision.  Thus, by way of the Board’s Second Decision, the Board dismissed the applicant’s appeal.”

The Judge’s decisions in the court below

11.  On 29 October 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 26 October 2018, without specifying any grounds.  In the supporting affirmation, the applicant stated that his life would not be safe in his country and annexed the Board’s decision dated 26 October 2018.

12.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 21 March 2022, the Judge issued his decision to refuse to grant leave to apply for judicial review.  The reasons were set out in [14] to [19] of the Form CALL-1 as follows:

“ 14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

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

‘ 13. (1)  … …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.’

17. The applicant does not have any valid ground to challenge the Board’s Second Decision.

18. 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.

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

13.  The court registry was closed because of the pandemic when the Judge’s decision was issued and only re-opened on 12 April 2022.  Long after the expiry of the 14-day time limit and 23 days after the court registry re-opened, the applicant filed a summons on 5 May 2022 together with a supporting affirmation to apply for extension of time for appeal against the Judge’s decision.  In his affirmation, the applicant stated that the delay was because he had not received the Judge’s decision within reasonable time.  On 14 June 2022, 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

14.  By summons filed on 15 June 2022, the applicant made an application for leave to appeal to the Court of Appeal from the Judge’s decision.  The applicant further stated that the Judge was wrong to accept the Board’s findings and failed to consider all applicable grounds for non-refoulement, in particular articles 2 and 22 of the Hong Kong Bill of Rights Ordinance (Cap. 383)  (“HKBORO”)[6]. We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 21 March 2022 refusing leave for judicial review. 

15.  In the applicant’s supporting affirmation, he stated that he would face hardship upon refoulement and that his life would still be in danger in his country, without any further elaboration.  In addition, he requested the Court to allow him to appeal and to stay in Hong Kong.

16.  The applicant had lodged written submissions on 27 June 2022 in accordance with the directions of the Registrar of Civil Appeals dated 15 June 2022.  It consisted of general statements of legal principles with no particulars. 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

17.  The applicant was late for over 3 weeks when he filed his initial summons on 5 May 2022.  In his supporting affirmation, the applicant stated that he would face hardship and his life would be in danger if refouled to Pakistan.  However, as the period in question was affected by the pandemic, we are prepared to focus on the merits of his intended appeal.

18.  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.

19.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  In its decision dated 26 October 2018, the Board had adopted its factual findings in the decision dated 18 November 2016 and had carefully considered the grounds and submissions put forward in the notice of appeal/petition dated 9 January 2017.  The Board found the applicant not to be a credible witness.  It found that many of the applicant’s grounds or submissions were general statements of complaints and did not contain any new material information or new events that supported a claim for BOR 2 risk. Despite the applicant’s further submissions about not being able to return to Pakistan due to lack of protection, it found that reasonable internal relocation without undue hardship was available for the applicant.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

20.  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.

21.  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.  In the summons and affirmation, the applicant had made reference to articles 2 and 22 of Section 8 of the HKBORO and statements of general legal principles with no specific application to his case.  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.

22.  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 15 June 2022 is accordingly dismissed.