ZEESHAN KHAN v. TOURTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 221/2019

[2020] HKCA 340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 221 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1667/2018)

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J U D G M E N T

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

Introduction

1.  By a summons filed on 5 September 2019, the applicant renewed his application for an extension of time to appeal against the decision given by Deputy High Court Judge Woodcock (“the Judge”) on 17 June 2019 refusing leave to apply for judicial review.

2.  The applicant’s earlier application for an extension of time to appeal was refused by the Judge on 30 August 2019. 

Background

3.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 29 January 2016 and was arrested by the police on the same day.  The applicant lodged a non-refoulement claim on 31 January 2016 and was then released on his own recognizance on 22 February 2016.  On 14 March 2016, he withdrew his non-refoulement claim and requested to be repatriated.  He re-applied to reopen his non-refoulement application on 19 May 2016. 

4.  The applicant’s claim was based on the alleged fear that, if refouled, he would be harmed or killed by some unknown men who threatened him because he had failed to assist them in killing his former employer, who is a Member of the Provincial Assembly of Punjab, Pakistan.  The factual background of this case was summarized by the Judge in [2]-[7] the Form CALL-1 ([2019] HKCFI 782).

5.  By a notice of decision dated 15 November 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds.  The former decision covered the BOR 2 risk[1], BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

6.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claim Petition Office (“the Board”).  A hearing was held on 5 January 2018, and the applicant gave evidence before the Board.  The Board found the applicant’s evidence incredible.  The Board also considered that even if he were telling the truth, the applicant had failed to establish that he would face a real risk of BOR 2, BOR 3, persecution and torture.  It also found that state protection was available and that internal relocation was a viable option for him.  By a decision dated 20 June 2018, the Board determined the appeal against the applicant.  

The Judge’s Decisions

7.  On 17 August 2018, the applicant applied for leave to apply for judicial review against the decision of the Board together with his affirmation filed on the same day.  The grounds he put forth for judicial review were summarized by the Judge in [11]-[12] of the Form CALL-1, which include the Board’s failure to consider the extended state acquiescence, failure to fully consider COI, procedural impropriety/ fairness, irrationality, a failure to call for medical reports, applied the incorrect standard of proof and failure to give reasons for rejecting the applicant’s credibility.

8.  After considering the decision of the Board, the Judge refused to grant leave to the applicant to apply for judicial review on 17 June 2019.  Her reasons in doing so were set out in [11] – [15] of the Form CALL-1 as follows:

“ 11.  I have considered with rigorous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. She analysed the material, claim and evidence carefully. The applicant has filed an affirmation that lists 14 grounds and attached a statement. He had not requested an oral hearing. The affirmation lists grounds but no particulars and some of the grounds are repeated; grounds 10 to 13 are duplicates of grounds 1 to 4 respectively. The statement is convoluted and refers to authorities, rambling rhetoric and poses questions.

12.  The applicant’s grounds include complaints against the adjudicator for failing to consider the extended state acquiescence, failure to fully consider COI, procedural impropriety/ fairness, irrationality, a failure to call for medical reports, applied the incorrect standard of proof and a failure to give reasons for rejecting the applicant’s credibility. There are no particulars to support any of these grounds and a reading of the adjudicator’s decision shows that the complaints against the adjudicator and the procedure undertaken are not made out in any event. I found no substance in the bare grounds of this application.

13.  The statement refers to several authorities but does not indicate the relevance nor particularise any grounds directly relating to the applicant’s claim or the adjudicator’s decision. There is on page 31 of that statement other bare grounds without any particulars to support them which would appear to be related to somebody else’s claim. There is a reference to a threat to and hardship faced by Shia Muslims, a reference to assaults and improper rejection of hearsay evidence; facts and issues unrelated to this applicant and his claim. All in all, it is a very confusing statement which as far as I can see does not contain any substantive ground against the adjudicator.

14.  I cannot find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

15.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

9.  According to the court record, a copy of the CALL-1 form and the sealed of the Judge’s order were sent to the applicant on 17 June 2019.  The applicant issued a summons together with the supporting affirmation affirmed by the applicant on 19 July 2019, which was outside the 14-day limit under Order 53 rule 3(4) of the Rules of High Court, Cap 4A.  The applicant explained in his affirmation that he did not received the documents from court until almost 14 days later.

10.  At the oral hearing held on 2 August 2019, the applicant further explained to the Judge that he did not receive the Judge’s order of 17 June 2019 at all, which was contradictory to the evidence given in his affirmation.  He further explained that he was only informed by the Immigration Department that his application for leave to apply for judicial review was refused.  The applicant further explained to the Judge that he could not relocate internally because he could not afford the rent if he moved to Islamabad, nor did he have any money to relocate or settle anywhere else in Pakistan.

11.  In the decision handed down on 30 August 2019 ([2019] HKCFI 1991; “the Leave Decision”), the Judge refused to grant an extension of time on the grounds that (i) the applicant gave contradictory evidence in his affirmation and during the oral hearing that he had no reasonable explanation for his delay in bringing the intended appeal; and that (ii) there was no merit nor any real prospect of success in the intended appeal. 

Renewed application for extension of time

12.  By a summons filed on 5 September 2019, the applicant renewed before this Court his application for leave to appeal out of time. 

13.  In an affirmation filed on 5 September 2019, the applicant deposed that he could not relocate in Islamabad as he would be unable to find a job in Islamabad.

14.  The applicant did not lodge his written submissions as directed by the Registrar of Civil Appeals on 6 September 2019 to support his application. 

The applicable principles

15.  Though the renewed application was brought within the time limit under Order 59 Rule 2B(3), the appeal was out of time by reason of the failure of the applicant in observing Order 53 Rule 3(4). Therefore, an appeal cannot be brought without extension of time being granted.   In considering whether to extend time for leave to appeal against an interlocutory decision, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

16.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would examine if he has merit in the intended appeal.  The crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading this Court to reverse the decision of the Judge.  When the delay is inexcusable, the Court will adopt a higher threshold by asking whether there is a real prospect of success.

17.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

18.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, this Court focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, this Court would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Discussion

20.  The Board rejected the applicant’s claim for non-refoulement protection in Hong Kong based on its finding against the applicant’s credibility, and the finding that there was no real risk of harm under BOR3, BOR 2, or risk of persecution or torture, and that state protection was available, and internal relocation was viable.  As it has been explained in Re Litoun Mounsy [2018] HKCA 537 at [11(a)] and Re Mizan Sikder [2019] HKCA 20 at [13(1)], these findings are primarily within the province of the Board.  The court will not intervene by way of a judicial review unless they contain errors on public law grounds. 

21.  Having considered the case with rigorous examination and anxious scrutiny, the Judge did not find any of such errors in the Board’s decision. 

22.  The applicant’s ground of appeal stated in his supporting affirmation was essentially those previously advanced and refused by the Judge in the Leave Decision, namely his inability to relocate in Islamabad as quoted above.

23.  Thus, in accordance with the principles discussed above, we would focus on the only ground advanced for challenging the Judge’s decision, viz viability of internal relocation.  Though internal relocation had briefly been mentioned at paragraph 14 in the affirmation of the applicant of 17 August 2018, he had not elaborated on the same in his other documents placed before the Judge.  Whilst the Board also referred to internal relocation at [56] and [57] of its Decision, its primary decision for rejecting the appeal was based on its finding on lack of real risk of harm, see [58], and that in turn was based on its finding on the lack of credibility on the part of the applicant, see [40], [41], [45], [48], [50].

24.  As stated in Nupur Mst v Director of Immigration, supra, at [14(1)]:

“ 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. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

25.  After reviewing the arguments of the applicant in light of the materials placed before the Judge, we agree with the Leave Decision that there is no reasonable prospect of success in the applicant’s judicial review application against the Board’s decision.

26.  For the reasons set out above, we are of the view that the intended appeal is devoid of any arguable merits and doomed to fail.  In the premises, this Court would not grant extension of time to appeal and the applicant’s summons filed on 5 September 2019 is dismissed accordingly.

27.  We are further of the view that the application is without any merits.  We make an order pursuant to Order 59, rule 2A(8) of the Rules of the High Court, Cap 4A that no party may request this determination be reconsidered at an oral hearing inter partes.