RE KHYBAR

CAMP 120/2021

[2021] HKCA 1667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 120 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 2154/2018)

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J U D G M E N T

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Hon Barma JA (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 Bruno Chan given on 15 September 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 13 August 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 15 October 2015 and 1 December 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 1 July 2013 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 3 July 2013.

3.  The applicant’s claim was based on threats from his creditor.  The details of the applicant’s claim have been summarised by the judge at [1] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 15 October 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 1 December 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 28 February 2017, the Board dismissed the appeal on 13 August 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [68] of the Board’s Decision, the Board found that the applicant’s creditor (known as Nadeem) had apparently lost interest in locating the applicant and the Board held that his feared ill-treatment is unlikely to materialize upon his return. The Board dismissed the claim for protection on all applicable grounds.  The Board was also satisfied at [69] that state protection would be available for the applicant and at [76] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 8 October 2018 seeking to judicially review the Board’s Decision which contained the following grounds for judicial review, as summarized by the judge at [11] of CALL-1 Form:

(1)  procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  that the Board acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3)  that the Board’s decision to refuse the applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  that the Board significantly relied on the source of news not officially recognized or was simply hearsay or outdated resulting in groundless speculations that it would be safe for the applicant to return to his country of origin; and

(6)  procedural unfairness in that the hearing bundle was given to the applicant only a few days before his appeal hearing with the majority of documents in the bundle in English thereby giving him insufficient time to prepare for the hearing and due to his limited English and being unrepresented that he was unable to seek interpretation assistance that he could afford.  

9.  In his affirmation in support of the leave application filed on 8 October 2018, the applicant reiterated the grounds raised in the Form 86.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [19] of the CALL-1 Form:

“12. These are however mostly just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion in dealing with his appeal, or how did the adjudicator act in a procedurally unfair manner, or in what way was the Board’s decision unreasonable or irrational in the public law sense, or which relevant COI were unofficially recognized or hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

15. Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his appeal hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

16. Essentially the Board rejected his claim on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 42 – 61 of its decision and in view of his failure to give any oral evidence or answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Application for extension of time to appeal and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 14 October 2020, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 1 April 2021.

12.  By a summons filed on 19 April 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that:

“The High Court refused my leave to apply for judicial review. I want to appeal against his decision, the court did not extend my time to appeal. Please extend time for me.”

13.  In the affirmation filed on the same day, the applicant asked for an extension of time without giving any ground for the application.

14.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 25 May 2021, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.

16.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

17.  This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker.  On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.

18.  The applicant only asked for an extension of time but he did not give any ground for the application.  The applicant has therefore failed to advance any viable ground of appeal.  We also do not see any error in the judge’s decision.

19.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 19 April 2021 is dismissed accordingly.