RE RAFAQAT ALI

CACV 90/2018

[2018] HKCA 440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 90OF 2018

(ON APPEAL FROM HCAL 419/2017)

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JUDGMENT

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock given on 23 March 2018 refusing him leave to apply for judicial review. The intended judicial review was against the decision of the adjudicator of the Non-refoulement Claims Petition Office dated 30 June 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration rejecting his claim in respect of the BOR 2 risk[1].

Background

2.  The applicant is a Pakistani.  He departed Pakistan for Mainland China on 26 February 2007 and came to Hong Kong illegally on 28 February 2007.  He was arrested by the police on 24 September 2007.  He was convicted of possessing an identity card relating to another person and was sentenced to 8-month imprisonment.  He lodged his torture claim on 14 January 2008.  Upon the commencement of the unified screening mechanism (“USM”) on 3 March 2014, the applicant’s torture claim was taken to be a non-refoulement claim and assessed under the USM.

3.  The applicant’s claim was based on his fear that, if he returned to Pakistan, he would be killed by the family of his girlfriend, Bibi.  It is the applicant’s case that Bibi’s family disapproved of their relationship and rejected his proposal to marry Bibi.  The applicant eloped with Bibi, but Bibi’s brothers later found them and took Bibi away.  The applicant learnt that Bibi was killed by her family due to the belief that she had brought shame and dishonour to her family.

4.  By a Notice of Decision dated 16 October 2014 (“the Director’s First Decision”), the Director rejected the applicant’s claim.  The Director assessed that the perceived risk of harm was based on the applicant’s own speculation without any objective evidence in support.  It was also considered that the political influence of Bibi’s family was not as great as the applicant claimed.  The availability of state protection and the viability of internal relocation would lower or negate the level of risk of harm. The Director’s First Decision covered the BOR 3 risk[2], the persecution risk[3], and the torture risk[4]. 

5.  The applicant appealed to the Torture Claims Appeal Board against the Director’s First Decision. Having held an oral hearing for the appeal on 4 June 2015, the Board dismissed the appeal on 29 November 2016 (“the Board’s First Decision”).

6.  By a letter dated 29 December 2016, the Director invited the applicant to provide additional facts for further assessment under the BOR 2 risk.  As the applicant did not respond by the deadline, the Director proceeded with the assessment.  By a Notice of Further Decision dated 24 January 2017 (“the Director’s Further Decision”), the Director decided that the applicant’s claim in respect of the BOR 2 risk was not made out.

7.  The applicant petitioned to the adjudicator of the Non-Refoulement Claims Petition Office against the Director’s Further Decision.  Given that the applicant did not provide any additional facts to the Director and that he did not rely on any additional facts in his petition, the adjudicator did not see the need to hold an oral hearing.  Having studied the materials, including the Board’s decision on 29 November 2016, the adjudicator did not find that the applicant could establish a case under the BOR 2 risk.  Accordingly, the adjudicator dismissed the petition on 30 June 2017 (“the Board’s Second Decision”).

Application for leave to judicial review

8.  The applicant filed the form 86 on 18 July 2017.  It appears in the said form 86 that the intended judicial review was against the Board’s Second Decision, as the reference number of that decision was stated in the form 86.  The form 86 contained no grounds for seeking relief.  In his affirmation dated 18 July 2017 (exhibiting a 5-page document marked “RA”), the applicant deposed that:

“ I make this Affirm solemnly and sincerely that all the contents are mentioned below are true and there are many irrelevant facts in decision made by Torture Claims Appeal Board dated 30 June 2017. There is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were favour on reject my claim. Actual life occur different situation than mentioned COI information. Officer prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining. The decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claim.” (sic)

9.  In the exhibit marked “RA”, the applicant contended the followings:

(a)   It was unfair for the Board to reject his claim in the Board’s First Decision because the Board failed to carry sufficient research and inquiry into the country of origin information (“COI”) (paragraph 6);

(b)   The Board failed to give due regard to the materials in the COI, which was in the applicant’s favour and supportive of his non-refoulement claim, such as the corruption of the Pakistani police (paragraph 7 & 10);

(c)   The applicant approached the Duty Lawyer Service when he received the letter from the Immigration Department dated 29 December 2016, but the Duty Lawyer Service refused to offer any assistance to him (paragraph 9);

(d)   It was unfair for the Director and the adjudicator to dismiss his claim based on the BOR 2 risk without interviewing the applicant (paragraph 11);

(e)   The Director and the Board failed to understand the culture of Pakistan that his girlfriend’s family would continue to chase and kill him, and the real situation in Pakistan was different from what was described in the COI (paragraph 12 & 13);

(f)   Relocation was impossible because his girlfriend’s family belonged to an influential political party, and it was wrong to regard the dispute between the applicant and his girlfriend’s family as of private nature (paragraph 14); and

(g)   The applicant required some further time to obtain evidence about the false allegations that he was framed by his girlfriend’s family (paragraph 15).

The deputy judge’s decision

10.  After a hearing held on 7 December 2017, the deputy judge dismissed the application on 23 March 2018. The reasons for refusing leave to apply for judicial review were set out at paragraphs 8 to 13 of the CALL-1 form:

“ 8. The supporting affirmation correctly states in the introduction that the applicant seeks leave to judicial review the adjudicator’s decision dated 30 June 2017. Yet in paragraph 5 it refers to the first decision by the TCAB dated 29 November 2016 and follows that with grounds of review. In the following three paragraphs it is unclear what decision the applicant is referring to because no particulars are given.

9. In paragraph 9 the applicant does become specific and submits he did not provide additional facts for a BOR 2 claim because after receiving the letter of 29 December 2016 he approached the duty lawyer scheme which refused to give him further assistance and he was in the dark what information to submit therefore, submitted nothing. In paragraph 16, he contradicts himself and claims he wanted to provide additional facts but he did not receive any letter from the Immigration Department. There is no merit in this ground.

10. He complains that the dismissal of his BOR 2 claim was unfair without any interview or hearing. I am satisfied the adjudicator’s reasons for considering the appeal/petition on the papers are proper and reasonable. There is no merit in this ground.

11. There are other complaints against the adjudicator that refer to his first decision but relate to his findings of fact and it would appear credibility. There are accusations of the adjudicator relying on speculations and the interpreter not interpreting properly but no particulars are provided. There are no merits in these accusations. There is an attempt to introduce, I assume, new evidence that was not before the TCAB of his enemies attacking his family not long ago and making recent false report against him to the police but these are matters I will not take into account.

12. I find the adjudicator’s decision to be without fault. I do not find any ground that shows there was an error of law by the adjudicator nor any evidence of procedural unfairness. There is no failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test.

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

The Appeal

11.  In the Notice of Appeal filed on 3 April 2018, the applicant contended that:

(a)   He referred to the Board’s First Decision in his supporting affirmation in support of his application for leave to judicial review because he regarded his non-refoulement claims as one case, which should be treated as a whole;

(b)   He was treated unfairly because the Duty Lawyer Service refused to provide assistance after his receipt of the letter from the Immigration Department dated 29 December 2016; and

(c)   As he could not understand the letter properly, it was unfair for the director to dismiss his claim in respect of the BOR 2 risk without giving him a chance to explain his case properly.

12.  By a letter dated 6 April 2018, the applicant agreed that this appeal could be heard by a two-judge court.

13.  In compliance with the directions given by the Registrar of Civil Appeals on 27 April 2018, the applicant submitted his Skeleton Submission on 26 June 2018.  In the Skeleton Submission, the applicant contended as follows:

(a)   his non-refoulement claims should be treated as one case and should be determined as a whole;

(b)   in order not to waste resources and money, he waited until everything was determined so that he could seek leave in one go;

(c)   the Duty Lawyer Service refused to render any assistance to him in relation to the letter from the Immigration Department regarding the BOR 2 risk; and

(d)   it was unfair for the Director and the adjudicator to dismiss his claim based on the BOR 2 risk without having an interview or an oral hearing.

14.  We heard the appeal on 24 July 2018. For some reason, the applicant only included the Board’s First Decision in the appeal bundle without the Board’s Second Decision. It was misleading for him to refer to the Board’s First Decision in the index of the bundle as Determination of Petition without a hearing.  There was a hearing on 4 June 2015 before the Board rendered its First Decision on 29 November 2016. There was no oral hearing before the Board’s Second Decision.

15.  We have retrieved the Board’s Second Decision from the lower court file.

Discussion

16.  Under Order 53, rule 4 of the Rules of the High Court, Cap 4A, judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose.  Accordingly, if the applicant wished to apply for leave to seek judicial review in respect of the Board’s First Decision, he should have done so within 3 months after the date of that decision. In this connection, he was grossly out of time when he applied by Form 86 on 18 July 2017.

17.  The first appeal had been concluded on 29 November 2016. The second appeal arose out of the Director’s Further Decision made on 24 January 2017 which was confined to a consideration of BOR2 risk. The Board’s Second Decision was confined to an appeal from that decision, therefore also confined to BOR2 risk. As a matter of law, the Director’s Further Decision and the Board’s Second Decision did not have the effect of re-opening the Board’s First Decision.

18.  Hence, under Order 53 Rule 4, the applicant should have applied for extension of time before he could apply for judicial review regarding the Board’s First Decision.

19.  Without any application for extension of time to bring the judicial review, the deputy judge was obliged to dismiss that part of judicial review in relation to the Board’s First Decision on the ground of delay, see MI v Secretary for Security [2018] HKCA 419. 

20.  Actually, the applicant’s own evidence was that he was not aware of the letter of 29 December 2016 from the Director, see last sentence in paragraph 16 of his exhibit RA, contradicting his earlier assertion at paragraph 9 that he had approached Duty Lawyer Scheme and they refused to help him. As such, the assessment of BOR 2 risk cannot be the genuine reason for his failure to bring application for judicial review within time regarding the Board’s First Decision.

21.  The Grounds (a) and (b) are devoid of merit.

22.  In light of his self-contradictory statement in exhibit RA, the deputy judge was entitled to reject his assertion that the Duty Lawyer Scheme refused to give him assistance at [9] of the CALL-1 Form. We see no basis for disturbing this conclusion on appeal. Ground (c) is therefore without merit.

23.  In any event, we agree with the deputy judge that the grounds for relief in relation to the Board’s First Decision were unmeritorious.  The applicant’s criticism regarding the board’s treatment of the COI was bare assertions without particulars.  Given the applicant failed to identify any legal errors in the Board’s treatment of the COI, there is no basis for the deputy judge to interfere with it. 

24.  Furthermore, we noted in paragraph 4 of the Board’s First Decision that the Board had given the applicant an opportunity to testify at the oral hearing, which the applicant chose not to do.  The Board had further invited the applicant to comment on the COI at the oral hearing: see paragraph 16. In such circumstances, there is no reasonably arguable basis to criticize the Board regarding the use of COI. 

25.  Evaluation of evidence is essentially a matter for the Director and the Board, not for the court, and they are entitled to make such evaluation based on the evidence available before them.  The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment of the board in the hope that the court may consider the matter afresh in absence of any legal error, see: Re Lakhwinder Singh [2018] HKCA 246.

26.  When the director invited the applicant to submit additional facts in support of the assessment of his BOR 2 risk, he did not respond.  We do not accept the applicant’s contention that he failed to submit any additional facts because of his inability to understand the contents of the letter.  All the court documents prepared by the applicant in this case were written in English.  Thus, the applicant clearly had access to, or was able to seek, assistance if he pursued the matter with due diligence.  He was actually able to lodge a petition on 2 February 2017 against the Director’s Further Decision (made on 24 January 2017) shortly after it was made, see paragraph 6 of the Board’s Second Decision. 

27.  In any event, the applicant had the opportunity to present additional facts and materials in support of his petition against the Director’s Further Decision but he did not state anything new in his Notice of Petition, see paragraph 8 of the Board’s Second Decision.  In light of that, there was nothing unfair for the adjudicator to proceed on the basis of the primary materials before him in the second appeal, bearing in mind that such primary materials were obtained through the screening interview with the assistance of the applicant’s lawyers. Since there had already been an oral hearing in the first appeal, and there was nothing new in the materials presented in the petition supporting the second appeal, the Board was entitled to come to the view that no oral hearing is necessary for the disposal of the second appeal.  We do not accept that it is reasonably arguable to challenge the fairness of the process in this respect.

28.  On the facts of this case, we cannot see any additional basis for advancing a case on the BOR 2 risk, independent of the BOR 3 risk, the persecution risk, and the torture risk. The findings of the Board in the Board’s First Decision (made after oral hearing being held) in the following respects are applicable regarding BOR 2 risk:

(a)   Lack of substantial risk of harm;

(b)   State protection available;

(c)   Internal relocation.

29.  Having considered the applicant’s skeleton argument as well as the material before us, we take the view that the deputy judge’s observations are justified.  We cannot see any error of law or procedure in the proceedings before the director and the board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  We agree with the deputy judge that leave to apply for judicial review should be refused.

30.  For these reasons, we do not see any prospect of success in the intended application for judicial review, and dismiss the appeal accordingly.