FARRUKH ZAIB v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 299/2019
and CAMP 301/2019

[2020] HKCA 408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 299 OF 2019

(ON APPEAL FROM HCAL 670/2017)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 301 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 670/2017)

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JUDGMENT

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

Introduction

1.  On 28 June 2018, Deputy High Court Judge Josiah Lam refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 1 September 2017.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 17 September 2015 and 13 December 2016 rejecting the applicant’s non-refoulement claim.

2.  On 24 September 2019, the applicant took out a summons for an extension of time for appealing against the said decision of DHCJ Josiah Lam.

3.  On 25 November 2019, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to appeal against the said decision of DHCJ Josiah Lam out of time.

4.  By a summons dated 27 November 2019, the applicant sought leave from this Court to appeal against DHCJ Bruno Chan’s decision of 25 November 2019.

Background

5.  The applicant is a national of Pakistan.  He left Pakistan for mainland China on 28 November 2011, and entered Hong Kong illegally from mainland China by boat on 6 November 2012.  On 13 November 2012 the applicant was arrested by the police.  He lodged a non-refoulement claim on 16 November 2012. 

6.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by supporters of the Pakistan People’s Party (“PPP”) in revenge for the applicant shooting a gun and accidentally fracturing the knee of a PPP supporter known as Zaka as a result.  The factual background was succinctly summarized by DHCJ Josiah Lam at [1] – [9] of the Form CALL-1 ([2018] HKCFI 1410).

7.  By two notices of decision dated 17 September 2015 and 13 December 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The former covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3], and the latter the BOR 2 risk[4].

8.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 12 April 2017, during which the Board asked the applicant whether he had anything further to tell the Board and whether he had anything further to supplement respect of the Board’s decision of 13 December 2016, to which the applicant replied that he had none.  The Board then proceeded to assess the applicant’s evidence, and found that the applicant had not made out a case for non-refoulement protection, because, inter alia, the applicant’s fear was exaggerated and based in part on speculation. 

9.  Further, the Board considered that state protection is available upon the applicant returning to Pakistan.  The Board also considered that internal relocation was viable for the applicant.  In addition, the Board considered that there was no real persecution risk, torture risk, BOR 3 risk or BOR 2 risk, and refused the applicant’s non-refoulement claim with respect to all four of these grounds. The Board dismissed the applicant’s appeal/petition on 1 September 2017.

The application for leave for judicial review

10.  On 25 September 2017, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  As distilled from the applicant’s Form 86, applicant advanced the following grounds for judicial review:

(a)  Unlawful fettering of discretion;

(b) Wednesbury unreasonableness or irrationality;

(c)  Not receiving the Director’s letter dated 22 November 2016 inviting him to submit additional facts for consideration of BOR 2 risk, and not being aware of the Director’s decision on same until after the fact, let alone being given a further interview on BOR 2 risk or being told that the appeal included the BOR 2 risk issue;

(d) Not being provided with legal representation and language assistance for his Board appeal and for judicial review;

(e)  The Board cherry-picked information; took into account COI that was not officially recognized or simply hearsay; relied on outdated cases; ignored evidence and COI favourable to the applicant’s claim; ignored he had suffered serious injuries and mental/physical stress; rushed to decision; made groundless speculations to the effect that it would be safe for the applicant to return to Pakistan; and rendered erroneous findings and conclusions.

11.  Upon the request of the applicant, an oral hearing was held on 30 May 2018.  The applicant attended in person.  After summarizing the background of the case and giving due consideration to the decisions of the Director and the Board, DHCJ Josiah Lam refused to grant leave for the applicant to apply for judicial review.  The reasons for refusing leave were set out at [30] – [43] of the Form CALL-1 ([2018] HKCFI 1410) dated 28 June 2018 as follows:

“ 30. The Applicant complained he had not received the Director’s letter dated 22 November 2016 inviting him to submit additional facts for the consideration of BOR2 risk and he had not received the Notice of Decision on that issue (dated 13 December 2016). Yet, he had been able to receive other letters at the same address where he had been living since August 2015. That sounds strange.

31. It is more inconceivable to hear the Applicant said he was not aware of the BOR2 decision even during the appeal hearing before the Adjudicator. The Applicant alleged he was not told that the appeal included the BOR2 risk issue.

32. The Adjudicator specifically asked the Applicant whether he had anything to supplement in respect of the Notice of Further Decision. The Applicant replied he had nothing further to say. (That Notice of Further Decision referred to the Director's further decision dated 13 December 2016 on the BOR2 risk issue.)

33. I do not accept the Applicant’s assertions.

34. The Applicant also complained he was not given further interview by the Director on the BOR2 risk issue.

35. The Director had received no additional facts from the Applicant on the issue. It was right for the Director to continue to deal with the Applicant’s claim with respect to BOR2 risk without the need to hold further interview. The Applicant failed to tell this court what more he could say of his claim with respect to BOR2 risk. In his affirmation, the Applicant only stated he could produce proof but he could not be specific in court. There is no substance in such complaint.

36. The Applicant further complained that he was not provided with legal representation and language assistance for his appeal to the Board and for judicial review.

37. In the current application, the Applicant had Form 86 and his affirmation well presented in English. Apparently, he could find someone to provide him with language assistance.

38. The Applicant had legal assistance from the Duty Lawyer Service up to the Director's decision coming out on 17 September 2015. He cannot demonstrate to this court how his claim would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

39. For his current application of judicial review, the Director of Legal Aid on 8 February 2018 refused to grant aid to the Applicant.

40. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.

41. There are other complaints made by Applicant against the Adjudicator. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Adjudicator, who had engaged in proper joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed that he was acquainted with the facts and the law. He had considered the Applicant's case carefully and applied the law correctly. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

42. The Director is an interested party in the current application. I have also reviewed the Director's decision and further decision under ‘rigorous examination and anxious scrutiny’. What has been said of the Adjudicator in para. 41 above is also true of the Director. The Director had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Director had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

43. The Applicant’s complaints are not reasonably arguable.  He has no realistic prospects of success in the sought judicial review.  I therefore refuse to grant him leave for the review.”

Application to extend time to appeal refusal of leave for judicial review

12.  The applicable appeal period prescribed under Order 53 rule 3(4) of the Rules of the High Court (Cap 4A) is 14 days.  It expired on 12 July 2018.  The applicant did not bring an appeal within time.

13.  Almost 12 months later, on 2 July 2019, the applicant filed and served a notice of appeal in CACV 299/2019 against the refusal to grant leave for judicial review.  As an appeal out of time cannot be brought without leave, the notice of appeal was referred to Lam VP who made an unless order on 19 September 2019 that the appeal be dismissed unless the applicant filed a summons for extension of time to appeal in the court below by 3 October 2019.

14.  On 24 September 2019, the applicant took out a summons for an extension of time to appeal against the decision of DHCJ Josiah Lam.  In the supporting affirmation of the same date, the applicant deposed that he was not aware that he was late in bringing the appeal. 

15.  DHCJ Bruno Chan heard the summons on 30 October 2019.  In his decision dated 25 November 2019 ([2019] HKCFI 2731), DHCJ Bruno Chan considered that the delay of more than 12 months was very substantial and excessive.  At the hearing, the applicant explained that at the time he thought it was safe for him to return to Pakistan, but later when he was told that the situation had changed and that it was not safe to return, he then decided to appeal, by which time he was already way out of time.

16.  However, when DHCJ Bruno Chan asked the applicant to provide further particulars such as the dates or even months when he claimed to be told of situation in Pakistan, or details of those situations, that caused the applicant to make those decisions, he was unable to do so.  As such, DHCJ Bruno Chan was not satisfied that the applicant provided any valid or good reason for his serious delay.

17.  Further, in neither the applicant’s summons nor supporting affirmation did he provide any draft or proposed grounds of appeal, or any particulars of any error in the decision(s), or why it may be argued that the decision(s) was unfair or unreasonable.  In the absence of any error in the impugned decision(s) being clearly and properly identified by the applicant, DHCJ Bruno Chan did not see any prospect of success in the intended appeal, and therefore dismissed the applicant’s summons and refused the application for leave to appeal out of time.

The renewed application

18.  On 27 November 2019, the applicant filed a summons seeking leave to appeal against the decision of DHCJ Bruno Chan dated 25 November 2019 refusing leave to appeal out of time.

19.  In his supporting affirmation of 27 November 2019, the applicant deposed “… I am late to file my Notice of Appeal out of time, because I was told to Immigration for return home, after wait long time, I heard that my fear still continue in my country, so that I was late for my Appeal.”

20.  In his written submissions lodged with this Court on 16 December 2019, the Applicant raised the following grounds of appeal:

(a)  The Board and the Director failed to comply with their duty to make sufficient inquiries into country of origin conditions in relation to the Applicant’s claim, and adopted a passive approach in contravention of the high standard of fairness required pursuant to Secretary for Security v Sakthevel Prabakar, (2004) 7 HKCFAR 187 at [54] – [55]; cf. TK v Jenkins, [2013] 1 HKC 526 (CA) at [22] – [23];

(b) The Board and the Director failed to take into account relevant considerations, and/or took into account irrelevant considerations, as well as failing to give proper weight to relevant considerations and materials.

Legal principles

21.  Whilst it is technically possible to appeal against a lower court’s decision refusing an extension of time for appealing, it is more appropriate to renew the application for extension of time before the Court of Appeal: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8].  Accordingly, we shall treat the applicant’s summons as if it were a renewed application for leave to appeal against the substantive decision of DHCJ Josiah Lam out of time.

22.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, 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.

23.  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: see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

24.  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 of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(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 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.

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

(3) In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

25.  In the present case, the applicant was late by more than 12 months.  As noted by DHCJ Bruno Chan, this is a very substantial or excessive delay.

26.  We agree with DHCJ Bruno Chan that the applicant has not provided a satisfactory explanation for the long delay.  As the delay is inexcusable, the applicant has to show real prospect of success before extension would be granted: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020.

27.  In the present case the Board rejected the applicant’s claim for non-refoulement protection because it considered that: (i) there was no real persecution risk, torture risk, BOR 3 risk or BOR 2 risk; (ii) state protection would be available were the applicant to return to Pakistan; and (iii) internal relocation is available.  As explained, such a finding is within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

28.  In his documents and submissions, the applicant failed to provide the Court with any specific details that could provide public law ground to vitiate the findings of the Board in these regards.  As had been said repeatedly, general assertions would not be enough to give rise to viable grounds of appeal in a matter of this nature: Re Mizan Sikder [2019] HKCA 20; Re Imbuh Karina Binti Yamroni [2019] HKCA 950.

29.  Having considered the materials before us, we are of the view that none of the proposed grounds put forth by the applicant in his submissions warrant this Court reversing the decision of DHCJ Josiah Lam.

30.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 27 November 2019 is dismissed accordingly.

31.  Without leave to appeal out of time, the appeal in CACV 299/2019 is incompetent.  We therefore strike out and dismissed the appeal accordingly.

32.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap 4A), no party may request this determination be reconsidered at an oral hearing inter partes.