Shahzad Raja Asim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 171/2023, [2023] HKCA 833

On Appeal From [2023] HKCFI 662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 171 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 861 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) dated 7 March 2023 refusing to grant leave for the applicant to apply for judicial review.[1] The intended judicial review was sought against the decision of the Torture Claims Appeal Board (“Board”) dated 21 March 2019. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 13 April 2017 rejecting his non-refoulement claim.

Background

2.The applicant is a national of Pakistan, born in 1979. He was arrested by the police in Hong Kong on 31 October 2013 being a suspected illegal immigrant. On 6 November 2013 he lodged a non-refoulement claim. His claim was based on the fear that, if returned to Pakistan, he would be harmed or killed by a gangster, who was a follower of an influential and powerful political figure, due to a land dispute. The details of his claim are set out in paragraphs 2 to 23 of the Board’s first decision dated 16 February 2017.

3.The applicant’s claim was first assessed by the Director with reference to three applicable risks, namely, torture risk,[2] BOR 3 risk,[3] and persecution risk.[4] By notice of decision dated 16 November 2015, the Director rejected the applicant’s claim for non-refoulement protection.

4.The applicant appealed against the Director’s decision to the Board. The Board held a hearing on 4 May 2016 at which the applicant gave evidence and answered the Board’s questions. In the end the Board was left in “grave doubt” on the truthfulness of the account of events given by the applicant and concluded that his evidence relating to certain incidents was so unreliable that no finding of fact could be made on which a decision in the applicant’s favour could be reached. Even if the applicant’s evidence was accepted, the Board found that the harm he had suffered did not attain the requisite minimum level of severity, indicating a low future risk of the feared ill-treatment. The Board also found that state protection was available to negate or lower the perceived risk of harm, if any, and that the applicant could relocate to areas in Pakistan other than his home place to avoid any risk of harm. Accordingly, in its decision dated 16 February 2017, the Board concluded that the applicant’s claim failed in relation to torture risk, persecution risk and BOR 3 risk, and dismissed his appeal and affirmed the Director’s decision.

5.In March 2017 the applicant was invited to submit additional facts relevant to his claim on all grounds including BOR 2 risk.[5] The applicant did not submit any further materials. By notice of decision dated 13 April 2017, the Director rejected the applicant’s claim on all grounds including BOR 2 risk.

6.The applicant petitioned to the Board against the further decision of the Director. The Board held a hearing on 26 October 2018, at which the applicant gave oral testimony. The Board found that the applicant did not add anything new to his case and, based on its previous position, came to the view that the petition should be dismissed. The Board further concluded that the applicant’s evidence, even if accepted, did not show any BOR 2 risk. Accordingly, in the Board’s written decision issued on 21 March 2019, the applicant’s petition was dismissed, and the further decision of the Director was confirmed.

The Judge’s decisions in the court below

7.On 28 March 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision dated 21 March 2019. He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.

8.Based on consideration of the documents alone, on 7 March 2023 the Judge issued his decision, dismissing the application for leave to apply for judicial review. The reasons were set out at paragraphs 15 to 20 of the Form CALL-1 as follows:

“ 15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Second Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …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.’

18. The applicant has not been able to raise any valid reason to challenge the Board’s Second Decision.

19. The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

9.The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), but took out a summons on 28 March 2023 to seek an extension of time to appeal against the decision of the Judge. In his summons, the applicant said that he did not get the decision from the court.

10.The Judge dealt with the application on paper. In his written decision issued on 27 April 2023,[6] the Judge decided to refuse to extend time on the ground there was no realistic prospect of success in the intended appeal.

The renewed application before this Court

11.By summons filed on 28 April 2023, the applicant seeks an extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review. In the accompanying affirmation, the applicant stated he did not get the Judge’s decision. In his written submissions lodged on 2 May 2023, the applicant repeated the main assertions in his non-refoulement claim and said that his claim was dismissed by the Director without any good reason. He said that the Board and the Director did not consider or think about the real facts.

12.Pursuant to Order 59 rule 14A of the Rules of the High Court, we consider it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. Given that the summons for extension of time in the court below was filed only 7 days after the expiry of time, we shall concentrate on the merits of the intended appeal.

14.It is important for the applicant to understand that judicial review is not a further avenue for appeal from the Board. Under the law, the Director and the Board are the decision-makers on the merits of his non-refoulement claim. The court’s jurisdiction in judicial review is supervisory in relation to compliance with law. An appeal to the Court of Appeal is not a further opportunity to re-argue the non-refoulement claim. It is incumbent upon an appellant to identify and establish proper grounds of appeal showing reviewable errors in the judge’s decision.

15.In the present case, the Board rejected the applicant’s evidence as being unreliable, and further held that his evidence, even if accepted, did not provide any sufficient basis for his non-refoulement claim, because the evidence did not justify a finding of risk of harm of the requisite severity and also because of the availability of internal relocation as a viable option. These are conclusions that the Board, as the primary decision-maker, was entitled to come to, for the reasons it had given in its decisions. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, and irrationality in the ultimate decision. The applicant has failed to establish any such public law ground.

16.Further, the applicant has failed to show how the Judge has erred in refusing to grant leave for judicial review.

17.For these reasons we do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons is accordingly dismissed.

The Applicant, unrepresented, acting in person