Abbas Qammar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CAMP 173/2020

[2021] HKCA 254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 173 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 234 OF 2017)

________________________

________________________

Before: Hon Kwan VP and Chu JA in Court

Date of Written Submission: 19 November 2020

Date of Judgment: 8 March 2021

________________________

J U D G M E N T

________________________

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

1.On 1 February 2019, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1].

2.On 7 May 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 15 February 2019.  The application was heard by the judge on 20 August 2020 and was dismissed on 11 September 2020^[2].

3.On 22 September 2020, the applicant took out this renewed application in the Court of Appeal for leave to appeal out of time against the judge's decision of 1 February 2019.

4.The applicant is a national of Pakistan.  He is 38 years old.  He entered Hong Kong illegally on 21 October 2013 and was arrested by the police on 12 November 2013.  He lodged a non-refoulement claim on 16 November 2013 on the basis that he would be harmed or killed by three fellow villagers over a land dispute.

The Director’s decisions

5.By a Notice of Decision dated  9 May 2016, the Director rejected the applicant’s claim on BOR 3 risk^[3], torture risk^[4] and persecution risk^[5]. 

6.By a Notice of Further Decision dated 21 March 2017, the Director rejected the applicant’s claim on BOR 2 risk^[6] 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 hearing of the appeal was conducted before the Board on 18 April 2017.  The Board considered that the alleged previous ill‑treatment does not amount to the requisite minimum level of severity. The Board also found that no Convention reason is involved in the applicant’s claim, there is no evidence that the government or other authorities pose a risk to his life and there is nothing to show any involvement or acquiescence by the Pakistan police in general.  The Board further assessed that reasonable state protection and internal relocation alternatives are available to the applicant in Pakistan, which would further lower or negate the level of any perceived risk.  Therefore, the Board dismissed the appeal on 9 May 2017.

The intended judicial review

8.The applicant filed a Form 86 and an affirmation on 25 May 2017 to seek leave to apply for judicial review against the decisions of the Director and the Board.  He only reiterated his perceived risk of life in the supporting affirmation but did not put forward any specific complaints in relation to the decisions of the Director and the Board.

The judge’s decision

9.DHCJ Bruno Chan dealt with the leave application on the papers.  The judge held that the applicant failed to provide any basis to impugn the conclusion of the Director and the Board. The judge found that there is no error of law or procedure in their decisions, nor any failure on their part to apply high standards of fairness in the assessment of the applicant’s claim.  The judge concluded that the intended judicial review does not have any prospect of success and dismissed the application on 1 February 2019.

Grounds of intended appeal

10.The applicant stated his intended grounds of appeal in his written submissions which may be summarized as follows:

(1)  His claim is true but the Director and the Board did not believe him.

(2)  There is no good reason for the judge to reject his application.  The judge did not deal with the applicant’s points and the merit of his claim in particular.

11.The applicant also attached a 21-page purported grounds to his supporting affirmation.

Analysis

12.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.

13.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 1 February 2019.  The applicant took out a summons at the court below on 7 May 2020.  He was late by more than 13 months^[7].

14.The applicant explained that he did not receive any correspondence from the court regarding the dismissal of his application as he was in custody of the Correctional Services Department and that he was unaware of the 14-day time limit as a litigant in person.  Although the applicant was in fact detained at the time when he filed his application for extension of time to appeal with the court below, the applicant did not provide any evidence as to whether he had already been in custody in February 2019 when the judge’s decision was sent to his address in Sham Shui Po.  In view of the lengthy delay and the lack of particulars in the applicant’s explanation, his substantial delay is inexcusable.  In these circumstances, 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.

15.In assessing the merit 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.

16.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.

17.The applicant’s purported grounds attached to his supporting affirmation were not raised at his previous leave application at the court below.  As an appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below^[8], the Court of Appeal should not entertain such purported grounds.

18.In his written submissions, the applicant complained that the judge did not consider the merits of his claim but rejected his application only because he did not find any error of law in the decisions of the Director and the Board.

19.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 Country of Origin Information 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: Nupur Mst v Director of Immigration [2018] HKCA 524

20.The judge’s decision is well justified.  In particular, as pointed out by the judge in paragraph 13 of the decision on 1 February 2019, both the Director and the adjudicator decided that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to another part of Pakistan.  The applicant failed to provide any evidence to refute such findings.  

21.For the above reasons, the applicant does not have any prospect of success in the intended appeal. We decline to grant an extension of time to appeal and dismiss his summons filed on 22 September 2020.

The Applicant, acting in person

[1] [2019] HKCFI 305

[2] [2020] HKCFI 2252

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

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

[5] 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 and its 1967 Protocol.

[6] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[7] Exclusive of the court’s summer vacation.

[8] Re Qadir Sher [2018] HKCA 160 at §11