Farman Naveed v. Director of Immigration and Another

CAMP 208/2020

[2021] HKCA 559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 208 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1331 OF 2018)

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Before: Hon Kwan VP and Chu JA in Court

Date of Written Submission: 12 January 2021

Date of Judgment: 28 April 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 27 May 2020, 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 6 July 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 10 June 2020.  The application was heard by the judge on 24 September 2020 and was dismissed on 2 November 2020^[2].

3.On 10 November 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 27 May 2020.

4.The applicant is a national of Pakistan.  He is 32 years old.  He entered Hong Kong illegally on 2 January 2016 and surrendered to the Immigration Department on 11 January 2016.  He lodged a non‑refoulement claim on 15 January 2018 on the basis that if he returns to Pakistan he will be harmed or killed by the family of his girlfriend who opposed their relationship.

The Director’s decision

5.By a Notice of Decision dated  21 March 2018, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk^[3], BOR 3 risk^[4], torture risk^[5] and persecution risk^[6]. 

The Board’s decision

6.The applicant appealed against the Director’s decision to the Board.  The hearing of the appeal was conducted before the Board on 13 June 2018.  The Board found that most of the core assertions in the non-refoulement claim were fabricated and the applicant did not adduce credible evidence to show the existence of the alleged romance with his girlfriend Ayesha.  The Board further held there was no reliable evidence to show that the applicant has suffered physical and/or mental suffering of the requisite severity.  The Board also found there was no evidence to show that the government, the state and/or other authorities in Pakistan have acquiesced in the alleged ill-treatment of the applicant.  Therefore, the Board dismissed the appeal on 28 June 2018.

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 9 July 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  He put forward the following grounds for his intended challenge:

(1)  the Director failed to take account of or give sufficient weight to the argument that the applicant had no faith that the Pakistani police and authorities would be able to provide assistance to him as they are all corrupt and that the inaction of government officials can effectively hold the state liable for failing to provide reasonable protection to its citizens against the risk of torture;

(2)  the Director failed to consider or give sufficient weight to those relevant Country of Origin Information (“COI”) which supported the applicant’s stance that the police or authorities in Pakistan would not assist him;

(3)  the Director had relied on different sources to conclude that the Pakistani government had taken practical steps to monitor the conduct of Pakistani police and to increase their effectiveness and that there are alternative avenues to seek justice in Pakistan which are mere speculations;

(4)  the Director failed to recognize that the corruption and incompetency of the Pakistani police are still extremely serious as supported by various reports of human rights organizations which supported the applicant’s case;

(5)  the adjudicator failed to attain the high standards of fairness as required by the Wednesbury test as the applicant was not legally represented;

(6)  the adjudicator failed to make sufficient enquiry before finalizing the decision; and

(7)  the adjudicator concluded that the extent and nature of injuries suffered by the applicant did not attain the minimum level of severity without advising the applicant to obtain medical report or evidence from the Pakistani authorities when deciding on the seriousness of his injuries.

The judge’s decision

8.A hearing was conducted before DHCJ Bruno Chan on 6 November 2019.  The judge held that the applicant’s grounds are just broad and vague assertions without any particulars or specifics or elaboration as to how they apply or are relevant to his case and how the Director and the Board had erred in their decisions or had failed to apply high standards of fairness.  The judge assessed that there is no error of law or procedural unfairness in the decisions of the Director and the Board or any failure on their part to apply high standards of fairness in their consideration of the claim.  The judge concluded that the intended judicial review does not have any prospect of success and dismissed the application on 27 May 2020.

Grounds of intended appeal

9.The applicant stated the following grounds of appeal in the summons:

(1)  the judge was wrong in accepting the adjudicator’s finding;

(2)  the judge failed to consider all applicable grounds of the non-refoulement claim, in particular the risk of violation of articles 2 and 22 of section 8 of the Hong Kong Bill of Rights Ordinance.

10.His further submissions in writing may be summarized as follows:

(1)  high standards of fairness are required in the determination of a torture claim;

(2)  the Board acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.

Analysis and disposition

11.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.

12.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 27 May 2020.  The applicant took out a summons at the court below on 6 July 2020.  He was nearly one month late.

13.The applicant explained that he only received the decision after the expiration of the time for appeal on 3 July 2020.  He has not provided cogent evidence in support such as the envelop bearing the postal mark.  Even if we are prepared to give him the benefit of the doubt and accept his reason for the delay, bearing in mind the impact of the pandemic on the postal service, we would still need to assess whether he can show a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^[7].

14.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.

15.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.  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 (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.In the present application, the applicant’s grounds are just bare assertions without particulars, elaboration or evidence in support.  In particular, the Board has set out detailed analysis in the assessment of the credibility of the applicant’s evidence and the reasons for rejecting his claim.  Furthermore, the applicant has failed to adduce evidence to refute the Board’s finding that his claim was fabricated and not supported by any reliable evidence.  He has also failed to provide any reasonably arguable basis to show there are errors of law or procedural unfairness or irrationality in the decision of the Board. 

17.For the above reasons, the applicant does not have any prospect of success in the intended appeal.  We therefore refuse to extend time to appeal and dismiss the summons filed on 10 November 2020.

The Applicant, acting in person

[1] [2020] HKCFI 266

[2] [2020] HKCFI 2671

[3] 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.

[4] 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.

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

[6] 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.

[7] Re Gurung Min Bahadur [2018] HKCA 226 §10