RE TAHIR WASIM

CACV 180/2022

[2022] HKCA 1391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 180 OF 2022

(ON APPEAL FROM HCAL NO 2214 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Au JA (giving the Judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  set out in the Form CALL-1 dated 25 April 2022, by which the Deputy Judge refused to grant extension of time and dismissed his application for leave to apply for judicial review (“the Leave Decision”)  ([2022] HKCFI 1149).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 1 September 2017 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”)  respectively dated 27 July 2016 and 23 May 2017 (collectively referred as “the Director’s Decisions”)  rejecting the applicant’s non-refoulement claim.

3.  On 5 May 2022, the applicant indicated his consent for this appeal to be disposed of on paper.  Accordingly, we proceeded to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a national of Pakistan.  He was arrested by the police on 14 August 2006 for illegal remaining in Hong Kong and was referred to the Immigration Department on 15 August 2006.  He raised a torture claim on 16 August 2006 on the basis that he would be harmed or killed by the people of Hizb-ul-Mujahideen if he returned to Pakistan.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [5] of the Leave Decision.

5.  By a Notice of Decision dated 27 July 2016, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR3 risk[2] and persecution risk[3].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.  The Director further rejected his non-refoulement claim on BOR2 risk[4] by way of the Notice of Further Decision dated 23 May 2017.

6.  The applicant then appealed against the Director’s Decisions to the Board.  The applicant attended the hearing before the Board on 3 July 2017.  The Board dismissed his appeal on 1 September 2017.  Having assessed the evidence, the Board found that the applicant’s claims were not reliable and that there was no evidence that the people of Hizb-ul-Mujahideen were looking for him.  The Board also considered that state protection and internal relocation would be available to the applicant upon his return to Pakistan.  The Board considered that the applicant had failed to substantiate his claim on the applicable grounds and accordingly, his appeal was dismissed.

The Leave Decision

7.  On 11 October 2018, the applicant applied for leave to apply for judicial review against the Board’s Decision.  In his Form 86 and supporting affirmation, the applicant did not state any ground of review.  In his supporting affirmation, he enclosed the hearing bundle before the Board.  He also enclosed a two-page non-English document without providing any translation of the same as well as some medical appointment slips.

8.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out at [16] - [23] of the Leave Decision:

“16. As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

17. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

19. 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.’

20. The applicant has not raised any valid ground to challenge the Board’s Decision.

21. 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.

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

CONCLUSION

23. I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review.  Accordingly, I dismiss his application.”

The Appeal

9.  On 5 May 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“THE HIGH COURT DID NOT FIND ANY ERROR OF TORTURE CLAIMS APPEAL BOARD. THERE ARE MANY ERROR. I DO NOT AGREE WITH THE COURT DECISION.” (sic)

10.  Pursuant to the directions made by the Registrar of Civil Appeals on 5 May 2022, the applicant lodged his written submissions on 19 May 2022.  In those submissions, he repeated the alleged factual basis and procedural history of his non-refoulement claim.  He further claimed that:

“I)  THE HIGH COURT GIVE HIS OWN DECISION. TORTURE CLAIMS APPEAL BOARD TOO GAVE DECISION FROM HIS BRAIN NOT FROM LAW BOOK.

II)  APPEAL BOARD DID NOT GIVE ME TIME TO BRING DOCUMENTS. I REQUESTED FOR TIME BUT HE REFUSED.

III)  APPEAL BOARD ACTED WITH ME LIKE MY OPPONENT NOT LIKE A JUDGE.

IV)  ALL HIS QUESTION WAS PARTIAL SUSE AS BEFORE TAKING MY HEARING HE WAS SURE TO REJECTED MY CLAIM.” (sic)

Discussion

11.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.  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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

13.  At the outset, nowhere in his Notice of Appeal or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision.  His complaints are mainly directed at the Board’s Decision, which in any event, are all new and not raised before the Deputy Judge.  This is not permissible now to be run in the intended appeal: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].

14.  In any event, his allegations have no substance as they are bare, vague and unsupported by specific particulars.  The applicant also failed to provide any evidence to support his contention that a request for time to submit documents had been made before the Board.  Even until now, the applicant did not demonstrate what further documents he intended to submit. His allegations simply have no merit.

15.  Further, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin Information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As correctly noted by the Deputy Judge, this application has failed to point to any error of law, irrationality or procedural unfairness in the proceedings before the Board.  We see no basis to interfere with the Leave Decision.

16.  Accordingly, the applicant’s appeal has no merit and we dismiss the appeal.