Re Khan Amir

CAMP 307/2022, [2023] HKCA 1042

On Appeal From [2021] HKCFI 3548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF4 APPEAL

MISCELLANEOUS PROCEEDINGS NO 307 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2211 OF 2018)

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J U D G M E N T

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

1.On 24 November 2021, DHCJ Bruno Chan (“the Judge”) refused to grant an extension of time to the applicant for leave to apply for judicial review concerning the applicant’s non-refoulement claim and dismissed his leave application (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (Cap.4A) (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 10 December 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 10 August 2022.

3.On 19 August 2022, the applicant filed his summons in CAMP 307/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision. 

4.In compliance with the directions made by the Registrar of Civil Appeals on 19 August 2022, the applicant lodged his written submissions on 31 August 2022.

5.Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.The applicant is a national of Pakistan. He entered Hong Kong illegally on 28 March 2009 and was arrested by police on 3 May 2009. He was then referred to the Immigration Department for investigation and on 6 May 2009, he raised a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was later taken as a non-refoulement claim, on the basis that if he returned to Pakistan he would be harmed or killed by the Taliban as he refused to comply with the request of a man claiming to be with the  Taliban to stop selling pornographic materials in his shop in his home district.  A few months later, he was assaulted by a group of men claiming to be with the Taliban.  He then fled, eventually to Hong Kong.  The factual background of this case was succinctly summarised by the Judge at [2] – [4] of the JR Decision ([2021] HKCFI 3548).

7.By a Notice of Decision dated 26 January 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decisions covered the BOR 3 risk[1], and the persecution risk[2].

8.The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and attended an oral hearing on 5 August 2015 but he declined to give any oral evidence or to answer questions raised by the Board [36].  By its decision dated 29 October 2015, the Board dismissed the appeal.  For the reasons set out at [34] to [37], the Board found that the applicant’s claim failed.  Despite his claimed fear of the Taliban in Pakistan, he did not raise a torture claim until he was arrested by the police after more than one month in Hong Kong and his immediate response to the police enquiring about his purpose for coming to Hong Kong was “to find a job” which was different from his subsequent allegations for his claim.  The applicant refused to address or clarify his case at the oral hearing before the Board.  Even on his written evidence, it was found that he did not sustain any serious injury and after ceasing his business, it was not believed that the Taliban would still be interested in pursuing him.  In any event, internal relocation is a viable option [5] – [31].  For the aforesaid reasons, the applicant’s non-refoulement claim failed on all applicable grounds. 

9.On 10 January 2017 the Director on his own initiative invited the applicant in writing to submit additional facts which may be relevant to his non-refoulement claim on BOR 2 risk^[3].  This was rejected by the Director by the Notice of Further Decision dated 25 January 2017.  The applicant did not appeal this decision to the Board.

Application for leave to start judicial review

10.On 11 October 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision of 29 October 2015.  Order 53 rule 4(1) of the RHC requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose.  By then the applicant was out of time with his application by more than 32 months. The delay was egregious.

11.In his supporting affirmation, he set out 14 grounds summarized as follows:

(1)   There was no reasonable basis for rejecting his claim on credibility.

(2)   It failed to consider the extended form of state acquiescence.

(3)   It failed to fully consider the COI reports in assessing the risk to the Applicant.

(4)   Irregularity of the decision-maker being a different person than the interviewing officer.

(5)   Procedural impropriety/unfairness in failing to investigate into the COI of Pakistan.

(6)   Irregularity in failing to place weight on relevant information or selectively placing weight on irrelevant information.

(7)   Irrationality in failing to consider a consistent system of human rights violations in Pakistan.

(8)   Irrationality in failing to consider if state protection exists in Pakistan.

(9)   Procedural impropriety in failing to call for psychological or psychiatric reports or evaluations of the applicant’s claim.

(10)   Procedural impropriety in applying the incorrect standard of proof.

(11)   No proper basis for consideration of internal relocation.   

The JR Decision

12.An oral hearing was fixed for 11 November 2021 but the applicant failed to attend without any explanation and the Judge proceeded to dispose of his application on paper.  After due consideration of the decision of the Board as well as the grounds for the intended challenge, the Judge refused to grant an extension of time for the application for leave to apply for judicial review and dismissed the leave application with reasons set out in [14] - [19] of the JR Decision:

“14. In the Applicant’s case, a delay of more than 28 months must be considered as extremely inordinate, for which he did not provide any explanation in his Form or affirmation, nor did he attend the scheduled hearing of his application without any explanation, and as the record shows that the decision was sent on the same day to his then last reported address without being returned through undelivered post, I do not see any good reason for his such serious delay.

15. As for the merits, if any, of his intended application, those grounds put forth by the Applicant as stated above are however all just broad and vague assertions of his containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or how did the Board apply the incorrect standard of proof, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy is state acquiescence to his claim, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, while the whole purpose for his appeal to the Board to be heard before a different Adjudicator was to safeguard fairness in the two-tier screening process for his non-refoulement claim under the system. As such and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

16. 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.

17. In the Applicant’s case, the Board rejected his claim partly on its adverse finding on his credibility for the reasons set out in paragraphs 34 - 37 of its decision which is essentially on the bases of an admission made by him to a police officer that he came to Hong Kong to look for jobs when he was arrested in May 2009 for illegal entry, and of his election to remain silent during his appeal hearing before the Board and hence he failed to explain certain concerns of the Board over his claim, but it is not at all clear from the Board’s decision whether those concerns raised in the rhetorical questions set out in paragraph 37 of the decision had actually been put to the Applicant during the hearing notwithstanding his decision to remain silent, and while the Board was entitled to rely on Section 37ZD(1) of the Immigration Ordinance to take into account the Applicant’s behavior such as his said admission to the police of coming to Hong Kong to look for jobs or his failure to raise his claim when he first arrived in Hong Kong until his later arrest as damaging his credibility, it is clear that the Board would still be required to make proper findings as to the Applicant’s stated claim of fear of harm from the Taliban based on the information and materials available before it notwithstanding the absence of any oral evidence from the Applicant at his appeal hearing, but which this Adjudicator did not appear to have done so.

18. It also seems to me extravagant and unnecessary for the Board to take the trouble of calling the arresting police officer some 6 years after the arrest to appear before the Board in the Applicant’s appeal hearing just to confirm what the Applicant had said as noted above when there is no suggestion of any issue being raised by the Applicant or in his Notice of Appeal (see [4] of the decision).

19.  Nevertheless, I am not satisfied that there is any real merits in the Applicant’s intended application, as apart for his own failure to put forth any reasonably arguable basis for his intended challenge as noted above or to clearly and properly identify any error of law or procedural unfairness in his process before the Board or in its decision, it has been established, properly and correctly in my judgment, 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.”       

Application for extension of time to appeal the JR Decision

13.As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 10 December 2021 for an extension of time to appeal. That was dismissed by the Judge on 10 August 2022.  Hence, the Summons to this court.

Discussion

14.In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

15.As for (1), the applicant was late by 2 days between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was insignificant.

16.As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that as he was unrepresented, he needed to seek assistance from others to prepare the necessary documents for his intended appeal.  As the delay is insignificant, it is not necessary to consider the validity or otherwise of this reason. 

17.The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant failed to satisfactorily explain the egregious delay between 2015 and 2018 when he eventually filed the Form 86.  The applicant also failed to put forward any proper or valid grounds of appeal, or any particulars of any error in the JR Decision save for saying that the Judge’s decision was unfair and he cannot relocate in Pakistan as his enemies were furious that he got married in Hong Kong.  He further claimed that he has young children and he cannot leave them in Hong Kong or bring them to Pakistan. 

18.In his written submissions, he quoted cases on the high standards of fairness required in the determination of a non-refoulement claim and alleged without particulars that the Board had acted in a procedurally unfair manner without properly assessing his credibility.  However, he did not explain or elaborate on how the aforesaid cases were relevant to his case, when he had chosen to remain silent before the Board [36, Board Decision]. 

19.It is clear from the JR Decision that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and has applied the right test as set out in AW v Director of Immigration [2016] 2 HKCA 393 in refusing to grant an extension of time for the application to apply for leave for judicial review and had rightly dismissed the leave application.  We find nothing amiss in the JR Decision. 

20.As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 19 August 2022.

The applicant, unrepresented, acting in person