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

CAMP 446/2022, [2023] HKCA 526

On appeal from [2022] HKCFI 834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 446 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2351 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge P Li (“Judge”) dated 24 March 2022 refusing leave for the applicant to apply for judicial review against the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) [1]. On 2 September 2022, Deputy High Court Judge To refused to extend time for the applicant to appeal against the Judge’s decision dated 24 March 2022[2].

Background

2.  The applicant is a Pakistani national. He claimed to have sneaked into Hong Kong by boat from Mainland China. He was arrested by the police on 26 March 2007 for unlawfully remaining in Hong Kong. He raised a torture claim which was rejected by the Director on 6 June 2012. After the introduction of the unified screening mechanism (“USM”), he filed the present non-refoulement claim on 24 March 2014.

3.  In gist, the applicant’s claim was based on a fear of death or serious harm by his uncles who threatened to kill him for his intention to marry outside of his family and/or for refusing to marry one of his cousins.

4.  By a Notice of Decision dated 10 January 2018, the Director decided against the applicant’s claim. This decision covered BOR 2 risk[3], BOR 3 risk[4] and the persecution risk[5]. When considering the applicant’s non-refoulement claim under the USM, the Director declined to consider the torture risk[6], noting that the applicant’s torture claim was rejected by the Director on 6 June 2022, and informed the applicant that his non-refoulement claim would be assessed on all applicable grounds other than the torture risk.

5.  The applicant appealed to the Board. After an oral hearing on 5 July 2018, the Board dismissed the appeal on 24 September 2018.

6.  The Board’s decision covered all grounds for non-refoulement protection other than torture risk, having been satisfied that the applicant’s claims have previously been effectively assessed against the torture risk.

The Judge’s decision on leave to apply for judicial review

7.  The applicant filed a Form 86 on 25 October 2018 for leave to apply for judicial review against the Board, with a supporting affirmation, in which he made various complaints which can be summarised as follows:

(1)  There was no basis for rejecting his credibility;

(2)  Failure to consider extended form of state acquiescence;

(3)  Failure to consider the Country of Origin information (“COI”);

(4)  No proper basis for accepting reasonable internal relocation options.

8.  The Judge gave the following reasons in his decision dated 24 March 2022 in refusing the application (at §§8 to 15 of the CALL-1 form):

“The Decision of the Board

8. The adjudicator found that the evidence of the applicant was not truthful. There was no real risk of harm. She dismissed the appeal on 24/9/2018. The reasons were:

i. The applicant’s written submission was that it was not permitted to marry outside the family. However, he told the adjudicator that his two siblings had married outside the family without any consequences. This situation was inconsistent with the marry-within-family rule. He explained that his uncle wanted him to marry his daughter—that cousin. The adjudicator did not accept that age differences prevented his other siblings to marry that cousin earlier on. In fact, some COI revealed that a large percentage of Pakistani girls would marry before the age of 18.

ii. The applicant further explained that it was the wish of his grandmother that he should marry the cousin. This assertion was not mentioned before.

iii. It was unreasonable that the applicant only learned of the marry-within-family rule after he decided to marry another woman outside the family.

iv. The applicant told the adjudicator that his uncle came to his home frequently and to the factory in Lahore asking about him. These were never mentioned before. On the contrary, his evidence was that he was safe at home and in Lahore before he left Pakistan. The adjudicator found that this further harassment by his uncle was a fabrication.

v. The applicant had not mentioned in the torture claim questionnaire in 2012 that he had married an Indonesian and had children in Hong Kong. This should have aggravated his fear from his uncle. His failure to mention it was damaging to this basis of his claim. The adjudicator doubted whether there was any fear arising from the marry-within-family rule.

vi. There were relocation options which would further lower the risk, if any, from his uncle. The adjudicator did not accept that his uncles would be able to locate him merely because they were in the transport industry.

Judicial Review

…

10. It is the duty of the adjudicator to establish the facts and the credibility of an applicant. In general, this court would not interfere. In a leave application, this court would decide whether there is any error of law and procedure. Whether the TCAB decision is rational.

11. The applicant’s inconsistency was serious. His evidence on the marry-within-family rule was not credible. The adjudicator had analyzed the evidence in great detail. I agree with her. Besides, the applicant failed to disclose his marriage in Hong Kong despite that this was highly relevant to his fear to return. I agree with the adjudicator that the applicant was not credible.

12. The assertion of the fear based on the marry-within-family rule was rejected by the adjudicator. There was no real risk of harm in Pakistan. There was no need to consider State protection or extended acquiescence. In any event, the applicant had not reported the assault by his uncle to the police.

13. The adjudicator disbelieved the applicant. There was no real risk of harm. On that basis, the adjudicator needed not consider the COI in Pakistan. Nor was it necessary to consider State protection or internal relocation.

14. In my view, there is no error of law or procedure, the TCAB decision is rational.

Conclusion

15.  This court refuses leave for the intended judicial review. It is not reasonably arguable. There is no reasonable prospect of success.”

9.  According to the court’s record, a copy of the CALL-1 form and a sealed copy of the Judge’s order were sent to the applicant by ordinary post on 24 March 2022.

The application for extension of time to appeal before DHCJ To

10.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. According to Order 59 rule 3(1), an appeal to this court must be brought by a Notice of Appeal.

11.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 24 March 2022. He only took out a summons in the Court of First Instance to extend time to appeal on 7 June 2022. In his supporting affirmation, he stated that he did not receive the Judge’s decision in time.

12.  DHCJ To dismissed his application for extension of time on 2 September 2022 and gave the following reasons at §§4 to 9 of his decision:

“Length of delay and reasons for the delay

4. Any person dissatisfied with the order of the court may appeal that order within 14 days after it was made. By 7 June 2022 when the Summons was filed, 75 days had lapsed since the date of the Order. The application is 61 days out of time. It was a substantial delay in the context of a fourteen-day period for appeal. According to the Court record, the Order and Form Call-1 were sent to the Applicant’s address in Cheung Sha Wan Road as stated in his Form 86. The address as stated in his Summons is in Nelson Street. The only reasonable inference is that he did not receive the Order because he had moved without updating the Court with his new address. In Re Karamjit Singh and Re Hasmi Rizwan Imran, the Court of Appeal held that it is the applicant’s duty to inform the court of his change in correspondence address and he has to bear the consequence of his failure to comply with that obligation.

Prospect of the intended appeal

5. The ultimate subject matter which the Applicant seeks to challenge in the intended judicial review is the finding of the Board in its Decision. The Applicant declined providing his grounds of intended appeal. The only way the Court could assess the prospect of success of his intended appeal is to re-examine the Decision afresh. In an application for leave to apply for judicial review, an applicant may only challenge the Board’s finding on the grounds that it was made as result of errors of law, procedural unfairness and that the Decision was irrational. All these considerations have been set out in the Form Call-1.

6. Having rigorously examined the Decision, the Form Call-1, the papers and the evidence with anxious scrutiny, I am satisfied that DHCJ Li and the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; and correctly identified the issues. The Board observed a very high standard of fairness. It found the Applicant not credible and was not satisfied that he would face any risk of harm if returned to Pakistan. It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds[7]. These are finding of facts which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. DHCJ Li had considered the Applicant’s grounds of judicial review. He could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. He considered the Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. He found the Decision of the Board is utterly without fault. Having similarly examined the Decision and Form Call-1 with anxious scrutiny, I agree with DHCJ Li’s conclusion.

7. For the above reasons, the Applicant has no arguable grounds for judicial review. His proposed judicial review has no realistic prospect of success, neither has his intended appeal against DHCJ Li’s decision refusing to grant [him] leave to apply for judicial review. For this reason alone, it would be futile to grant leave to appeal out of time.

Prejudice to the respondent

8. The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge to proceed would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

9. The Applicant has no explanation for the substantial delay and has no arguable grounds of appeal. His intended appeal has no prospect of success. To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration. Accordingly, his application for extension of time to appeal is refused.”

The present application for extension of time to appeal

13.  By a summons filed on 26 October 2022, the applicant renewed his application for an extension of time to appeal before this court. In the summons, he stated that the Judge failed to consider all applicable grounds of non-refoulement claim and in particular on the grounds of risk of violation of articles 2 and 22[8] of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). In the supporting affirmation, the applicant stated that he would face hardship and his life would still be in danger if he returns to his country.

14.  In the applicant’s submissions dated 8 November 2022, it is stated that the Board acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility but there is no explanation what such alleged procedural unfairness is.

Discussion

15.  Having considered the papers and the applicant’s written submissions, we are satisfied that this application can be properly 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.

16.  DHCJ To was wrong to hold that the applicant was 61 days out of time in issuing a summons for extension of time. He should have taken into consideration the closure of the High Court Registry due to public health reasons from 7 March 2022 to 11 April 2022. Time should be counted from 12 April 2022. The applicant was 56 days late when he issued his summons on 7 June 2022. This error makes no difference to the holding that the delay was substantial.

17.  The applicant did not provide any explanation why he did not receive the Judge’s decision. DHCJ To observed that it was likely because the applicant had moved without updating the court with his new address. The applicant also did not provide any explanation why he only took out the present application on 26 October 2022 after receiving DHCJ To’s decision dated 2 September 2022[9].

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

19.  The applicant did not in the Form 86 or the accompanying affirmation condescend to any particulars on what basis the Board’s Decision was said to be wrong, procedurally unfair or Wednesbury unreasonable. As rightly observed by the Judge, 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, hence the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the Board’s decision.

20.  There is no substance in the contention in the summons that the Judge failed to consider all applicable grounds of the non-refoulement claim. The Board had considered BOR 2 risk in §§58 to 61 of its decision. The Judge had scrutinised the Board’s decision including its assessment of BOR 2 risk.

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. That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed by the Judge.

22.  We do not see any prospect of success in the intended appeal, and this court will not grant extension of time for a hopeless appeal. The summons filed on 26 October 2022 is accordingly dismissed.