Dilsoz Ab Khaliq v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 94/2020

[2021] HKCA 97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 94 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1645 OF 2018)

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BETWEEN

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Before:  Hon Kwan VP and Chu JA in Court

Date of Written Submission:  19 October 2020

Date of Judgment:  29 January 2021

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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 6 December 2019, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2.The applicant filed a summons on 15 January 2020 seeking leave to appeal against that decision out of time, as the 14-day period to file his appeal ended on 20 December 2019.  The applicant was absent at the hearing of the application before the judge scheduled on 6 May 2020.  On 2 July 2020, the judge handed down his decision refusing to grant leave to the applicant to appeal out of time as the applicant was unable to show that he has any reasonable prospect of success in his intended appeal[2].

3.On 10 July 2020, the applicant took out a renewed application in the Court of Appeal for leave to appeal out of time against the judge's decision of 6 December 2019.

4.The applicant is a national of Afghanistan.  He is 26 years old[3]. He entered Hong Kong illegally on 9 December 2014 and was arrested by the police on 16 February 2015.  He raised a non-refoulement claim on 18 February 2015 on the basis that he would be harmed or killed by some Taliban members who demanded him to stop working as the government contractor to join them.

The Director’s decisions

5.By a Notice of Decision dated 23 August 2016, the Director of Immigration (“Director”) rejected the applicant’s claim on BOR 3 risk[4], torture risk[5] and persecution risk[6].

6.By a Notice of Further Decision dated 20 July 2017, the Director rejected the applicant’s claim on BOR 2 risk[7] in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim. 

The Board’s decision

7.The applicant appealed against the Director’s decisions to the Board.  The Board conducted a hearing on 24 April 2018.

8.Although the Board accepted that the applicant would face real risk of serious harm at the hands of Taliban from which the Afghan authorities would be unable to provide him with effective or reasonable protection if he were to return to his home area of Zurmat, the Board assessed that the applicant would not face a situation of undue harshness in Kabul, the capital of Afghanistan, and internal relocation to Kabul would be safe and reasonable for the applicant.  Therefore, the Board held that the applicant did not have a well-founded fear of serious harm in the whole of Afghanistan and dismissed the appeal on 3 August 2018.

The intended judicial review

9.The applicant filed a Form 86 and an affirmation on 16 August 2018 to seek leave to apply for judicial review against the decision of the Board.  He stated in the supporting affirmation that he was not satisfied with the rejection of his claim as his life was threatened by the Taliban group and other cities are also not safe as there are always bomb blasts.

The judge’s decision

10.The applicant was absent at the hearing before DHCJ K W Lung scheduled on 20 June 2019.  The judge considered his application on paper.  He concluded that the Board had examined the evidence conscientiously and the findings of fact by the adjudicator was final.  He held that the applicant failed to show he has a reasonable prospect of success in his intended judicial review and dismissed the application on 6 December 2019.

Grounds of intended appeal

11.The applicant stated the following grounds of appeal in the supporting affirmation filed on 10 July 2020:

(1)  the judge was unfair in examining the decision of the Board because the situation in the applicant’s country is clear;

(2)  the applicant had proof that he was really in trouble when he was in Afghanistan and a lot of people who worked with foreign troops were killed in Afghanistan; and

(3)  the Taliban targeted him and there is a lot of proof about target killing in Afghanistan.

12.His contentions in his written submissions may be summarized as follows:

(1)  he was not given legal representation from the Duty Lawyer Service after the Director’s decision, which is in violation of the principle of high standards of fairness and should be considered a miscarriage of justice;

(2)  the Board’s decision to refuse his appeal was unreasonable, irrational or was the result of procedural errors or unfairness;

(3)  the court wrongly held that it should not apply an intensive or rigorous standard of review and failed to apply the standard of review under torture risk;

(4)  the country of origin information (“COI”) stated by the Board was just based on the knowledge of their own state report without understanding the context in Afghanistan.

Analysis and disposition

13.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.

14.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 6 December 2019.  The applicant took out a summons at the court below on 13 January 2020.  He was late by more than three weeks.

15.The applicant stated in his affirmation filed with the court below on 15 January 2020 that he did not receive the order as he has moved to another place.  He had informed the immigration centre of the new address but did not know he has to inform the High Court.  His explanation is not acceptable.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

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

17.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.

18.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 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 (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.

19.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.

20.The applicant’s ground concerning the lack of legal representation after the Director’s decisions is unmeritorious.  It is well established that the applicant does not have an absolute right of legal representation at every stage of the proceedings (Re Ahmed Syed Rafiq [2018] HKCA 178 at §22) and he already had legal representation for presenting his case to the Director at the screening stage.

21.As for the ground pertaining to the judge’s failure to apply rigorous examination of the Board’s decision, although it was primarily for the Board to assess the evidence and the alleged risk of harm, by reason of the gravity of the matter at stake, the court has to subject the Board's reasoning to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.

22.In the present case, in the applicant’s written submission attached to his supporting affirmation placed before the judge, he provided information regarding Taliban attacks in Kabul in 2018 to support his contention that it is unsafe for him to relocate to Kabul, giving the source of his information, the place and date of each of the attacks.  However, the judge did not appear to have addressed this at all in his decision.  The judge made reference to the Form 86 and the supporting affirmation but not to the submission attached to the affirmation.  In our view, there is some basis for arguing that the judge might not have subjected the Board’s assessment that the applicant’s relocation to Kabul would be safe and reasonable to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met.

23.On the above ground and this ground alone, we are inclined to think that the applicant has a real prospect of success in his intended appeal.  It would be appropriate to grant him an extension of time to appeal against the judge’s decision of 6 December 2019.

24.For the intended appeal to proceed, we direct the applicant to file a notice of appeal within 28 days from the date of our judgment, setting out the ground of appeal on the basis of the above ground as indicated.

The Applicant, acting in person