AHMAD SHAHZAD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 155/2021

[2021] HKCA 1230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 155 OF 2021

(ON APPEAL FROM HCAL NO 1338 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.  On 31 March 2021, DHCJ K W Lung (“the Judge”)  refused to grant an extension of time to the applicant to seek leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 1 September 2017 and dismissed the leave application.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”)  dated 28 June 2016 and 20 July 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 9 April 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

Background

3.  The Applicant is a national of Pakistan. He came to Hong Kong illegally in 2013 and was arrested by the police on 7 August 2013.  He lodged his non-refoulement claim with the Immigration Department on 18 November 2015 on the basis that if he were to return to Pakistan, he would be harmed by his creditor named Zaheer Ahmad (“ZA”)  because he was unable to repay the money he had borrowed from him. The factual background was succinctly summarized by the Judge in [4] – [5] of the Form CALL-1 ([2021] HKCFI 805).

4.  By a Notice of Decision dated 28 June 2016 and Notice of Further Decision dated 20 July 2017, the Director assessed the applicant’s claim on all applicable grounds ie BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4], and determined it against him.

5.  The applicant appealed the Director’s decision to the Board.  He attended an oral hearing on 26 July 2017.  For reasons given in its decision of 1 September 2017, the Board dismissed the appeal.  After due consideration of the applicant’s evidence, the Board did not find him a truthful or honest witness as his oral evidence had significant inconsistencies like (a)  his place of residence from 2008 until he left Pakistan at 2013; (b)  the purchase and sale of the printing machines; and (c)  alleged threats from ZA to the applicant’s family and the mediation of village elders.[5]  The Board concluded that the applicant’s evidence of threats made against him by ZA was not established and there would be no real risk of harm upon his return to Pakistan.  In any event, internal relocation is a viable option.[6]  For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds.

Decision of the court below

6.  On 9 July 2018 the applicant filed his Form 86 for leave to apply for judicial review with only the Director named as proposed respondent, but the decision in respect of which relief was sought was said to be “25-08-2018”, which was not the date of the Director’s decisions.  In his supporting affirmation, he said that he wanted to challenge the Board’s decision, and it was therefore taken that he was seeking to judicially review the decision of the Board dated 1 September 2017.  The only ground asserted was that the Board’s decision was unfair and unreasonable.  No particulars were given.

7.  The applicant did not request for an oral hearing and the Judge disposed of the application on paper.  In his decision dated 31 March 2021, the Judge refused to extend time for the application for leave to apply for judicial review and dismissed the application.  The reasons for the refusal were set out at [13] – [18] of the Form CALL-1 as follows:

“13. As mentioned in paragraph 1 above, this application is out of time under O. 53 r.4(1)  of the RHC, the Board’s Decision being 1 September 2017 and the application was filed on 9 July 2018. The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14 July 2020, Fok PJ held:

  “39. … … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review.   The aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant to refuse leave to apply.”

I shall consider the merits of the case.

14. The Court will bear in mind that the Board’s decision should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), 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.”

16. His ground in support of this application is only his opinion without any evidence or specific in support of it. It does not assist his application. The Board has clearly given good reasons in support of its findings.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Appeal to this Court

8.  On 9 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  In his Notice of Appeal, he advanced the following grounds of appeal:

“The High Court decision is negative for me, but the High Court could not show any good cause to refuse my apply (sic).”

9.  In compliance with the Court’s directions of 22 June 2021, the applicant lodged his written submissions on 20 July 2021 in which he stated that his enemy in Pakistan is powerful and could kill him easily in Pakistan but his case was rejected by the Director, the Board and the Court.  He further set out the following grounds of appeal:

(1)  The Judge did not consider his arguments (ground 1).

(2)  The Adjudicator did not give him enough time (ground 2).

(3)  The interpreter at the Board’s hearing was not qualified for which he talked to the interpreter in his own language for 5 minutes and the interpreter translated it for 2 minute and the Adjudicator said he understood but the interpreter told him the wrong thing (ground 3).

10.  At the hearing, he added only that his brother was selling the land and he might be able to repay his loan.  However, that is immaterial to the appeal.  

Legal principles

11.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and on appeal, which operates as a re-hearing, the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

12.  The applicant’s sole ground of appeal in the Notice of Appeal is that the Judge did not show good cause in refusing his application.  This is a vague and general assertion, and in any event, is devoid of merit.  The Judge had explained his reasons for refusal of the applicant’s case at [13] to [18] of his decision (set out at [7] of this judgment).  The matters raised in his written submissions, in so far as they related to the Board, were not raised before the Judge.    

13.  No reason having been given as to why he had not raised these arguments before the Judge, it is not permissible for him to pursue them for the first time on appeal. 

14.  Having considered the material before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny, and the Judge was plainly right to refuse extension of time and to dismiss the leave application.

Order

15.  For the above reasons, this appeal is dismissed.