RE AKHTAR HASSAN

CACV 548/2021

[2022] HKCA 837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 548 OF 2021

(ON APPEAL FROM HCAL NO. 2229 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 24 November 2021[1] refusing to extend the time to apply for judicial review and dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 30 May 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 31 August 2016 and 23 March 2017 rejecting his non-refoulement claim.

2.  The applicant is a national of Pakistan aged 36. He entered Hong Kong illegally and was arrested by the police on 26 October 2015. He raised a non-refoulement claim on 30 October 2015 based on fear of being harmed or killed by the Pakistan Muslim League (N) (“PMLN”) due to his affiliation with the Muttahida Quami Movement (“MQM”).  His claim was set out in detail in the Director’s first decision at [7] and the Board’s decision at [8] to [10], and summarised by the Judge in [1] to [3] of the Form CALL-1. 

3.  In gist, the applicant claims that soon after joining MQM in early 2013, he began to receive verbal and physical threats from members of the local PMLN.  One day in March or April 2015, when he was putting up posters with other MQM members, they were confronted and assaulted with wooden sticks by members of PMLN.  The applicant sustained major injuries, including a head injury and scratches over his body, for which he had received medical treatment.  A report was made to the police, but no action was taken. The applicant left his home village to stay with his relative in Karachi.  On his relative’s advice to seek asylum, he left for Guangzhou from where he came to Hong Kong.       

4.  By his decision dated 31 August 2016, the Director rejected the applicant’s claim having regard to the torture risk^[2], persecution risk^[3] and BOR 3risk^[4] grounds.   

5.  The applicant appealed the Director’s decision to the Board.  In the meantime, the Director issued his further decision dated 23 March 2017 which assessed the applicant’s claim under the BOR 2 risk^[5] ground and decided against it.

6.  The Board heard the applicant’s appeal at an oral hearing held on 12 March 2018 during which the applicant gave evidence and answered questions from the Board.  By its decision dated 30 May 2018, the Board dismissed the appeal.  In summary, for the reasons given in [12] of the decision, the Board found the applicant’s account inherently inconsistent, with some parts being inconsistent with the country-of-origin information and also defied logic.  The Board did not believe he was affiliated with MQM, that members of PMLN wanted to kill him or cause him serious harm or he was assaulted and injured by the PMLN members.  The Board further found that state protection and internal relocation alternatives were available which would negate or reduce any risks that he might face.  The Board concluded that he failed to make out a case for non-refoulement protection under all applicable grounds. 

7.  On 12 October 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision, which did not contain any ground for seeking relief.  His supporting affirmation, which reiterated the factual basis of his claim, also did not contain any ground for seeking relief. 

8.  Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires an application for leave to apply for judicial review to be made promptly and in any event within three months from the date when grounds for the application first arose.  The applicant’s Form 86 was late by six weeks.  

9.  The Judge heard the application on 26 October 2021.  The Judge refused to extend the time for the applicant to apply for judicial review and dismissed the application for leave to appeal.  He gave his reasons in [12] to [19] of the Form CALL-1 as follows:

“12. In the Applicant’s case, a delay of 6 weeks must be considered as very substantial. For which the Applicant explained at the hearing of his application that the decision arrived late in the mail when by then he was already out of time with his intended application, but he was unable to provide any further details such as the date when the decision arrived or documentary evidence such as the envelope which contained the decision showing the actual postmark.

13. The record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and in the absence of any further details or documentary evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided any good reason for his serious delay.

14. As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forth any proper ground for his intended challenge, 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 merits in his intended application either.

15. 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.

16. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 12 – 13 of its decision with the benefit of hearing him in his oral evidence and his 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 decisions that the risk of harm in the Applicant’s claim if true 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 in the absence of any good reason for his substantial delay, I refuse to extend time and accordingly dismiss his leave application.”

10.  The applicant filed the notice of appeal on 6 December 2021. It stated that (1) the applicant disagreed with the decisions of the Director and the Board because they did not consider his claim under BOR 2 risk ground; and (2) the authorities discriminated against non-refoulement claimants and were only concerned with disposing of their claims quickly.     

11.  In his written submission, the applicant stated the following:

(1)  He had a big problem in Pakistan. 

(2)  Although the PMLN is not the ruling power now, its reputation remains well known in Pakistan.

(3)  The rejection of his claim is a big error.  He left his family and child and his motherland, and his problem was real.  Yet his claim was not granted.    

12.  At the hearing of the appeal, the applicant submitted the following:

(1)  The PMLN has returned to power and is now the ruling government.

(2)  It is very difficult for him to return to Pakistan.  He cannot work here and has no money.  His father, who used to support him, told him he should now be the one to earn money and support the family. 

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  They are that:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  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 and/or the process by which the decision was made.

(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.

14.  In light of the established legal principles set out above, we are of the view that the arguments put forward by the applicant do not constitute viable grounds of appeal.  Our reasons are as follows:

(1)  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to specific error in the reasons and decision of the judge. In the present case, the Judge found the applicant failed to give good reason for his serious delay and had also not provided any ground in support of his intended judicial review application.  The Judge concluded that the intended judicial review had no prospect of success.  None of the matters put forward in the notice of appeal and the applicant’s submissions has addressed the Judge’s decision or the reasons he gave for the decision.  In the circumstances, there is no proper basis for this court to interfere with the Judge’s refusal to extend time and the dismissal of the application for leave to apply for judicial review.     

(2)  The assertion in the notice of appeal that the Director and the Board did not consider the applicant’s claim under the BOR 2 risk ground is incorrect.  The Director had done so in his further decision while the Board had considered the appeal under the BOR 2 risk ground (together with the BOR 3 risk ground) at [14] to [22] of its decision.

(3)  The applicant’s assertion that his life will be threatened if he were refouled cannot stand in light of the Board’s rejection of his evidence and claim.  Assessment of credibility and evaluation of risks are matters for the Board, who is the primary decision maker.  The Court may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness.  The applicant has not advanced any substantive ground to challenge the findings made by the Board.  It follows that it is of no relevance to the appeal that the PMLN has returned to power. 

(4)  The applicant’s oral submission regarding his financial predicament is irrelevant to the appeal.          

15.  In any event, we have reviewed the Board’s decision and the Judge’s decision and the reasons they gave for their decisions.  We agree with the Judge that the intended judicial review has no reasonable prospect of success, that it would be futile to extend time for applying for judicial review and that the application for leave to apply for judicial review should be refused.  Accordingly, we dismiss the appeal.

[1] [2021] HKCFI 3540.

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[5] This refers to the risk of violation of the right of life under article 2 of the Hong Kong Bill of Rights Ordinance.