USMAN SOHAIL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 327/2023, [2024] HKCA 1091

On appeal from [2023] HKCFI 1028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 327 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 338 OF 2019)

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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):

1.  On 27 April 2023, Deputy High Court Judge To (“the Judge”) dismissed the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non-refoulement claim[1].

2.  On 31 August 2023, the applicant filed a summons for extension of time to appeal against the said decision. On 11 September 2023, the Judge directed the applicant to file grounds of intended appeal within 14 days, failing which his application for leave to appeal out of time will be refused. The applicant submitted no such grounds of intended appeal within 14 days. The summons was dismissed by the Judge on 4 October 2023.

3.  On 20 October 2023, the applicant filed an application for extension of time with the Court of Appeal. This application should be treated as a renewed application for extension of time to appeal against the Judge’s decision of 27 April 2023: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8.

4.  The applicant is a national of Pakistan. He claimed that he sneaked into Hong Kong from Guangzhou on 9 July 2014. He was arrested by the police for illegally remaining in Hong Kong on 11 July 2014. Shortly thereafter, he lodged a non-refoulement claim on 13 July 2014. His claim is based on a fear of being harmed or killed by members of the Pakistan Muslim League (Nawaz) (“PML(N)”) and in particular, two members of the PML(N) named Tariq Mehmood Bajwa and Rana Muhammad Arshad, as he was a supporter of an opposing party, namely, the Pakistan Awami Tehreek (“PAT”). The details of the applicant’s claim have been summarised in §§6-13 of the Judge’s decision (“the CALL-1 Form”).

The decisions of the Director and the Board

5.  By a Notice of Decision dated 19 May 2016, the Director rejected the applicant’s claim on grounds including torture risk[2], BOR 3 risk[3] and persecution risk[4].

6.  On 7 March 2017, the Director invited the applicant to provide further information on his claim based on BOR 2 risk[5] ground on or before 21 March 2017.

7.  On 17 March 2017, the Director received a letter from the Duty Lawyer Service stating, inter alia, that the applicant had no additional facts to submit to the Director.

8.  By a further Notice of Decision dated 22 March 2017, the Director rejected the applicant’s claim based on BOR 2 risk ground.

9.  The applicant appealed against the Director’s decisions dated 19 May 2016 and 22 March 2017 (together referred to as “the Director’s Decisions”) to the Board. After a hearing on 16 May 2017, the Board dismissed the applicant’s appeal on 30 January 2019. In dismissing his appeal, the Board found that whilst the applicant might have supported the PAT at some point, it was unable to accept that he was a member or a senior supporter as alleged. Further, the applicant’s accounts about ambush and shooting were fabricated, as such claims were inherently improbable and the applicant gave inconsistent evidence about such claims. Accordingly, the Board concluded that the applicant had failed to show that he would be at risk of any proscribed harm should he be returned to Pakistan in the reasonably foreseeable future.

The Judge’s decision

10.  On 4 February 2019, the applicant filed a Form 86 and an affirmation in HCAL 338/2019 seeking leave to bring judicial review against the Director’s Decisions. In his supporting affirmation, the applicant merely enclosed a copy of the Board’s Decision and requested the court to review all the evidence.

11.  As held by the Judge in §3 of the CALL-1 Form, the Director’s Decisions had been superseded by the Board’s Decision, hence they are no longer susceptible to judicial review[6]. Since the circumstances make it clear that the applicant’s intention is to seek leave to apply for judicial review of the Board’s Decision, the applicant was given leave to amend his Form 86 to refer to the Board’s Decision.

12.  As the applicant did not request an oral hearing in his Form 86, the Judge considered the leave application on paper. After summarising the facts and background of the case and giving due consideration to the Board’s Decision and the Director’s Decisions, the Judge dismissed the applicant’s leave application on 27 April 2023 and gave the following reasons in §20 of the CALL-1 Form:

“20. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. It found the Applicant incredible and rejected almost the entirety of his account. It found the Applicant fabricated his case and failed to prove the factual basis to support his claim for non-refoulement protection. It was on that basis that the Board found he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. It is utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, leave to apply for judicial review is refused.”

Analysis and disposition

13.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing. We have therefore determined the applicant’s application on the basis of the documents filed.

14.  In considering whether to extend time to appeal 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.

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A (“RHC”), the applicant had 14 days to lodge an appeal to the Court of Appeal against the Judge’s order after such refusal. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 27 April 2023.

16.  The applicant explained in the affirmation filed with the court below that he did not receive a copy of the CALL-1 Form. In this regard:

(1)  We note that in the Form 86, the applicant stated that his address was at 131 Tai Nan Street, Prince Edward, Kowloon (“131 Tai Nan Street Address”).

(2)  When asked by the court to confirm his address by a letter dated 25 March 2021, the applicant again, by a letter dated 7 April 2021, provided the 131 Tai Nan Street Address as his address to the court.

(3)  However, the court’s records show that as the 131 Tai Nan Street Address was apparently incomplete/invalid, the court sought assistance from the Director and was informed by the Director by a letter dated 12 December 2022 that the applicant reported his address to be at 190 Tai Nan Street, Sham Shui Po (“190 Tai Nan Street Address”). Accordingly, a letter enclosing the CALL-1 Form was sent to the 190 Tai Nan Street Address on 27 April 2023 and that letter had not been returned undelivered.

(4)  Under sections 36(1) and (1A) of the Immigration Ordinance, Cap 115, the applicant is required to notify an immigration officer in writing of any change in residential or correspondence address as soon as practicable after the change. Therefore, the court was entitled to assume that the address reported by the applicant to the Director (ie the 190 Tai Nan Street Address) was correct and sent the CALL-1 Form to the 190 Tai Nan Street Address.

(5)  In these circumstances, the applicant had only himself to blame for the delay in receiving a copy of the CALL-1 Form. The applicant’s explanation therefore cannot justify his substantial delay in the present application.

17.  Even if this Court is minded to accept his explanation for the delay, the most important consideration is the prospect of success of the intended appeal.

18.  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.

19.  In the applicant’s written submissions lodged on 3 November 2023, the applicant reiterated that Pakistan is not safe for him and put forward the following main grounds of appeal:

(1)  The Board made many errors and the Judge failed to address all the points raised by him and gave a “one-eye” judgment (“Ground 1”);

(2)  No oral hearing was held to consider his arguments (“Ground 2”).

20.  In relation to Ground 1:

(1)  The applicant merely asserted that the Board made “many errors” without condescending into particulars as to what those errors were.

(2)  In any event, the Board heard the applicant and assessed his evidence, which it found to be incredible. The Board gave extensive reasons (spanning around 10 pages) in rejecting the applicant’s evidence and referring to his various inconsistencies between his screening interview and his oral evidence given at the hearing before the Board. These factual findings are within the province of the Board as the primary decision maker. The court has no power to interfere with them unless they are vitiated by public law errors, such as misdirection in law, procedural unfairness or irrationality in the decision. However, the applicant has failed to make out or even identify any such defect in the Board’s Decision.

(3)  Ground 1 is therefore without any merit.

21.  In relation to Ground 2:

(1)  Pursuant to Order 53 rule 3(3) of RHC, the Judge may determine the application for leave without a hearing, unless a hearing has been requested in the notice of application.

(2)  As noted in §12 above, the applicant did not request for any oral hearing in his Form 86. Therefore, the Judge was entitled to determine the applicant’s application on paper.

(3)  Besides, the applicant already had the opportunity to make his submissions in his supporting affirmation filed in support of his Form 86 for the court’s consideration.

(4)  There is therefore no basis for him to complain that no oral hearing was held to consider his arguments. Ground 2 accordingly fails.

22.  For these reasons, we do not see any prospect of success in the intended appeal. We therefore refuse to grant extension of time to appeal against the Judge’s decision of 27 April 2023. The summons filed on 20 October 2023 is accordingly dismissed.