Re Khan Kamran

CAMP 120/2020

[2021] HKCA 665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 120 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 487/2018)

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Before:  Hon Lam VP and Barma JA in Court

Dates of Written Submissions:  20 October 2020

Date of Judgment:  13 May 2021

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J U D G M E N T

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

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 19 December 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 7 March 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 16 August 2016 and 23 March 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He was arrested by the police on 18 March 2016 and claimed to have entered Hong Kong illegally on the same day.  He lodged a non-refoulement claim on 22 March 2016. 

3.The applicant’s claim was based on threats from his relatives arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [2] to [6] of the CALL-1 Form.

4.By a Notice of Decision dated 16 August 2016 (“the Director’s First Decision”), the director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.By a Notice of Further Decision dated 23 March 2017, the director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 9 January 2018, the Board dismissed the appeal on 7 March 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.At [47] – [55] of the Board’s Decision, the Board found that the applicant has failed to establish any risk of suffering from the proscribed harms upon his return.  The Board was also satisfied at [61] that internal relocation would be viable.

The judge’s decision

8.For the application for leave to apply for judicial review, the applicant filed his Form 86 on 26 March 2018 which contained no ground for seeking relief.

9.In his affirmation in support of the leave application dated 26 March 2018, the applicant explained why it was not safe for him to return.

10.After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [16] of the CALL-1 Form:

“ 12. On 26 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would still be in danger in his home country and hence he wants to stay in Hong Kong to save his life. In the absence of any legal error or procedural unfairness in his process before the board or in its decision being identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14. The fact is that it has been established by both the Director and the Board in their respective decision 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 other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds of the applicant’s appeal

11.Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 23 January 2020, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 28 July 2020.

12.By a summons dated 6 August 2020, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that:

“ I would like to inform the court that still I have life problem in my country. Therefore I start my life in Hong Kong and I married here I live with my wife and I apply depending visa. Then I explain to judge regarding my problem and my present situation of Hong Kong too. Therefore my humble request from [the judges] to see my different situation and give me the solution to [unintelligible] my life to live peacefully with my wife in Hong Kong and I will explain to you in my oral hearing”

13.In his affirmation of the same day filed in support of the application, the applicant deposed that:

“ I am writing this grounds regarding my judicial review application was rejected by High Court but I have problem in my country. I was unable to submit my supporting document in time. Because now I was married and start my peaceful life in Hong Kong with my wife and waiting for depending visa…”

14.In his skeleton submissions dated 20 October 2020, the applicant submitted that:

(a)  It is unsafe for him to return;

(b)  The applicant explained to the Director and the Board and provided documents in support.  However, the Director and the Board disregarded those documents and rejected his case; and

(c)  He is married in Hong Kong and is applying for a dependent visa.

Discussion

15.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

16.As held by the judge at [4] to [5] of the decision dated 28 July 2020, the applicant did not provide any reasonable explanation for his delay in bringing the intended appeal. 

17.The application by the applicant for dependent visa is not a valid ground for seeking leave for judicial review against the decision of the Board (which only determined his non-refoulement claims).  Nor can it be a valid ground of appeal. 

18.The applicant did not identify the documents which he alleged the Board and the Director had failed to consider.  He did not advance this ground before the judge and no explanation had been provided for such failure.  This is therefore not a viable ground of appeal.  As we have often stated, appeal is not the occasion for raising new ground which should have been raised but not raised in the court below.

19.The bare assertion by the applicant that it is unsafe for him to return is not a valid ground of appeal.  Further, the Board has already found that there was no evidence to establish that he will suffer from any of the proscribed harms upon his return.  The applicant did not provide any valid reason for challenging such finding.

20.As we do not see any prospect of success in the intended appeal, we will not grant an extension of time for a hopeless appeal to be brought.  The summons of 6 August 2020 is dismissed accordingly. 

Applicant acting in person