Shah Amir Hussain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 503/2022

[2023] HKCA 314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 503 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1026 OF 2019)

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J U D G M E N T

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

1.On 30 November 2022, the Applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge To (“the Judge”) dated 30 September 2022 refusing to grant an extension of time to the Applicant to appeal against the Judge’s earlier order dated 30 June 2022 (“the Order”) refusing to grant him leave to apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 4 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 3 August 2018 rejecting the Applicant’s non-refoulement claim.

3.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.The Applicant is a national of Pakistan. He entered Hong Kong illegally on 29 March 2015, and surrendered himself to the authorities on 15 June 2016. On 3 August 2016, he raised a non-refoulement claim, alleging that, if refouled, he would be harmed by his neighbour Daud Shah and his son Hashim Shah arising out of a land dispute between them. Details of the Applicant’s claim have been summarised by the Judge at §§1-12 of the CALL-1 Form ([2022] HKCFI 1990).

5.By a Notice of Decision dated 3 August 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.The Applicant appealed the Director’s Decision to the Board. On 4 April 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§13-16 of the CALL-1 Form, as follows:

“[13] At the Applicant’s request by letter dated 10 March 2019, the Board determined his appeal without an oral hearing. Seemingly, the Board made no assessment of the Applicant’s credibility and proceeded to assess his entitlement on the basis of the case as asserted by him and on credible Country of Origin Information (‘COI’).

[14] The Board conducted a comprehensive review of the COI. It accepted the reports in some of the COI about inefficiency of the Pakistani police in maintaining law and order and corruption among the lower levels of the force. It also accepted, as alleged by the Applicant, that it is difficult for those without political or financial influence to file a complaint, particularly if they seek to implicate someone more powerful in a crime. However, the Board also found objective COI and news reporting that the government had taken steps to improve police effectiveness and police professionalism; and taking actions against corrupt officials and police officers. In addition, there are independent avenues for complaint against police inaction and misconduct. On balance, the Board was satisfied that in Pakistan, government officials and police officers are not immune from the law. It also accepted that the Pakistani court is effective in taking actions against human rights violation. The Board concluded at paragraph 66 of its Decision that there is no report or evidence of any systemic practice that the Pakistani government would fail to discharge its duties or tolerate any unlawful and collusive behaviour committed by an individual, any government official and member of any political party.

[15] The Board found that the dispute between the Applicant and his neighbours was a private dispute; that the past injuries suffered by the Applicant were minor and did not attain the minimum level of severity. It also found that state protection is available to the Applicant. It was only because of his unfounded speculation that the Applicant’s chose not to seek help from the police and higher authorities in Pakistan. These are finding of fact based on the Applicant’s own evidence.

[16] Applying the law applicable to non-refoulement protection under the USM, the Board found the Applicant had failed to prove his entitlement to protection under any of the four applicable grounds under the USM. Hence, it dismissed his appeal.”

7.On 15 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. He did not give any grounds for judicial review in the Form 86 or in his supporting affirmation.

THE JUDGE’S DECISION

8.On 30 June 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[18] The Applicant did not advance any grounds for judicial review in the Form 86 or in his supporting affirmation. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Pakistan. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

[19] Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicants’ claim on the basis of the case as he asserted but found on the basis of credible COI and its further finding of fact that he had failed to prove the factual basis to support of his claim. It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.”

9.On 30 September 2022, the Judge refused the Applicant’s application by summons dated 3 August 2022 for an extension of time to appeal against the Order ([2022] HKCFI 2826).

THIS APPLICATION

10.By a summons taken out on 30 November 2022, the Applicant applied to the Court of Appeal for leave to appeal against the Judge’s order of 30 September 2022. In the summons, the Applicant gave the following grounds of his proposed appeal:

“1 The decisions are unlawful.

2 The Decisions failed to take into account many things and [issues].

3 I have life danger in my home Country.”

11.In his affirmation filed on 30 November 2022, the Applicant said that he did not want to go back to his home country because he had “life danger” there, and the situation was very bad in Pakistan.

12.The Applicant has not lodged written submissions in accordance with the directions given by the Registrar of Civil Appeals on 30 November 2022.

DISCUSSION

13.Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

14.In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

15.The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

16.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

17.Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

18.The Applicant has failed to point to or show any error in the Judge’s decision of 30 June 2022, and has failed to raise any viable ground of appeal against the Order.

19.There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

20.The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 30 November 2022 is dismissed.

The Applicant, acting in person