HUSSAIN MUNIR v. TORTURE CLAIMS APPEAL BOARD

CAMP 78/2023, [2023] HKCA 744

On appeal from [2022] HKCFI 2367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 78 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2146 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):

Background

1.  On 3 August 2022, Deputy High Court Judge Bruno Chan (“the Judge”) refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2.  On 29 September 2022, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal had ended on 17 August 2022. On 30 January 2023, the Judge dismissed the applicant’s summons for extension of time to appeal against the said decision as there was no prospect of success in the applicant’s intended appeal and his application for judicial review[2].

3.  On 20 February 2023, the applicant filed the present summons in the Court of Appeal essentially to challenge the refusal of time extension by the Judge. In light of the decision Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for extension of time to appeal.

4.  The applicant is a Pakistan national and is 38 years old. He entered Hong Kong illegally in July 2013 and was arrested by police on 21 October 2013. He was referred to the Immigration Department of investigation. On 23 October 2015, he raised a non-refoulement claim on the basis that if he returned to Pakistan, he would be harmed or killed by his paternal cousin (“AA”) over a land dispute with his family in his home village. Details in this regard have been summarised by the Judge in §2 of the CALL-1 Form dated 3 August 2022 ([2022] HKCFI 2367) and need not be repeated here. The applicant was subsequently released on recognisance pending the determination of his claim.

The Director’s Decision

5.  By a Notice of Decision dated 12 May 2016, the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

6.  In that decision, the Director assessed that the level of risk of harm from AA upon the applicant’s return to Pakistan was low given the low intensity and frequency of past ill-treatment from AA and that there was no evidence of any real intention of AA to seriously harm or kill the applicant over the years. The Director also found that it was a private family dispute over the land between two families without any official involvement. State or police protection would be available to the applicant if required upon his return to Pakistan. Further, reasonable internal relocation alternatives in Pakistan are available to the applicant.

7.  On 28 June 2017, the Director invited the applicant to submit any additional facts which may be relevant to all applicable grounds for non-refoulement protection including in particular BOR 2 risk[6]. Despite the invitation, the applicant did not submit any further response or additional information. In such circumstances, by a Notice of Further Decision dated 14 July 2017, the Director found that the applicant’s claim did not engage BOR 2 risk.

The Board’s Decision

8.  The applicant appealed against the Director’s decision and attended the hearing before the Board on 25 May 2018. However, he refused to answer questions raised of his claim by the Adjudicator of the Board during the hearing.

9.  On 30 August 2018, the Board dismissed the applicant’s appeal. In essence, the Board found no substantial ground to believe that the applicant would face any risk of serious harm or risk to his life upon his return to Pakistan. Further, state protection and internal relocation would be available to the applicant. Having assessed the evidence, the Board considered that the applicant failed to establish a case of non-refoulement on all applicable grounds and dismissed the appeal.

The judge’s decision

10.  On 8 October 2018, the applicant filed a Form 86 and an affirmation for leave to apply for judicial review against the decision of the Board.

11.  In his Form 86 and affirmation, the applicant stated that he was not satisfied with the decision. He further reiterated that his life would still be in danger if he returned.

12.  By the CALL-1 Form dated 3 August 2022 ([2022] HKCFI 2367), the Judge refused to grant the applicant leave to apply for judicial review for the following reasons:

“10. On 8 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he is not satisfied with the decision and that his life is still in danger in his home country but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

11. 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.

12. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in his 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.

13. 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 claims under all the applicable grounds.

14. 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.”

Grounds of intended appeal

13.  The applicant did not provide any grounds of appeal in his summons or his supporting affirmation both filed on 20 February 2023 and merely stated that he did not agree with the decision of the Court and that he failed to appeal as he did not get the letter of the Court on time. These were basically the same arguments submitted before the judge below.

14.  Pursuant to the directions made by the Registrar of Civil Appeals on 20 February 2023, the applicant lodged his written submissions on 6 March 2023. In those submissions, the applicant mentioned his land dispute and reiterated that he would be in danger if he is returned to Pakistan. He also stated that he was not satisfied with the Board’s Decision, and further repeated that he failed to appeal as he did not get the Court’s decision.

Analysis and disposition

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 3 August 2022. The applicant took out a summons for extension of time to appeal against that order at the court below on 29 September 2022. He was late for about 6 weeks.

17.  In his summons and supporting affirmation both filed on 20 February 2023 and in his written submissions dated 6 March 2023, the applicant merely asserted that he did not receive any letter/decision from the court without providing any particulars or supporting evidence. Such a bare assertion cannot justify his delay.

18.  Indeed, as stated in §5 of the Judge’s decision dated 30 January 2023[7] dismissing the applicant’s summons for extension of time to appeal, the court record shows that the decision was sent on the same day to the applicant’s last reported address without being returned through undelivered post. The applicant has still not provided any evidence to corroborate his assertion that he did not receive the letter/decision on time.

19.  As the delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumati Ferry Co Ltd [2001] 1 HKC 125.

20.  In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

21.  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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

22.  In the present case, the applicant has failed to put forward any reasonably arguable grounds of appeal. The Judge at the court below provided well-founded reasons for his decision. The applicant failed to demonstrate that the Judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

23.  Having considered the materials before us, we share the Judge’s view that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

24.  For the above reasons, there is no prospect of success in the applicant’s intended appeal, let alone any real prospect of success. We refuse to exercise our discretion to grant extension of time to appeal against the Judge’s decision of 3 August 2022 and dismiss the summons filed on 20 February 2023.