Ar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 60/2024, [2024] HKCA 711

On Appeal From [2024] HKCFI 458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 60 OF 2024

(ON APPEAL FROM HCAL NO 2506 OF 2020)

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JUDGMENT

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Hon S T Poon J (giving the Judgment of the Court):

1.This is the Applicant’s appeal against the order of Deputy High Court Judge To dated 6 February 2024 (“the Order”)refusing to grant him leave to apply for judicial review of the decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 2 December 2016 and 17 January 2020, whereby the Board dismissed the Applicant’s appeals against the decisions of the Director of Immigration (“the Director”) dated 14 November 2014 and 1 February 2017 respectively.

BACKGROUND

2.The Applicant is a national of Pakistan.  He entered Hong Kong illegally on 5 July 2009 and was arrested by the police on the same date.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on 8 July 2009, which was later taken as a non-refoulement claim.  He claimed that if refouled, he would be harmed or killed by the family of Zahid Bhatti (“Bhatti”) because he refused to work for Bhatti and he was subsequently blamed for the murder of Bhatti.

3.By a Notice of Decision dated 14 November 2014 (“the Director’s First Decision”), the Director rejected the Applicant’s non-refoulement claim on the following grounds:the risk of torture[1], BOR 3 risk[2], and persecution risk[3].

4.On 20 November 2014, the Applicant appealed the Director’s First Decision to the Board.  On 2 December 2016, the Board dismissed the Applicant’s appeal and confirmed the Director’s First Decision (“the Board’s First Decision”).  The Board accepted that the Applicant suffered gunshots at two spots, one below his right knee and the other near his ankle (see the Board’s First Decision at §13). However, the Board found that there was no evidence to show that the men involved in the gunshot incidents were sent by Bhatti’s family and held that Bhatti’s family did not have any real intention to seriously harm or kill him (see the Board’s First Decision at §§14-17). The Board assessed that the level of risk of harm from Bhatti’s family on the Applicant in the future was low (see the Board’s First Decision at §§18-20).  The Board also found that the availability of state protection, and internal relocation alternatives, would further reduce the perceived risk of harm to the Applicant (see the Board’s First Decision at §§21-22).

5.On 4 January 2017, the Director on his own initiative invited the Applicant to submit additional facts which might be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including BOR 2 risk[4].  In the absence of any response, the Director by a Notice of Further Decision dated 1 February 2017 rejected the Applicant’s non-refoulement claim based on BOR 2 risk (“the Director’s Second Decision”). 

6.On 6 February 2017, the Applicant appealed the Director’s Second Decision to the Board.  On 17 January 2020, the Board dismissed his appeal (“the Board’s Second Decision”).  The Board observed that the Applicant provided no further information or additional facts in his BOR 2 claim, and also that the grounds of appeal/petition he raised in the notice of appeal/petition were bare allegations unsupported by facts (see the Board’s Second Decision at §§12 and 14).  The Board concluded that there was no substance in the Applicant’s appeal and dismissed the Applicant’s appeal.  

THE JUDGE’S DECISION

7.On 29 December 2020, the Applicant, through his then legal representative, filed a Form 86 to apply for leave to apply for judicial review of the Board’s First Decision and the Board’s Second Decision.  In the affirmation filed in support of his application on the same date, the Applicant explained the reasons for the delay in filing his intended judicial review against the two decisions of the Board.  They were summarised by the Judge at §§5-7 at the CALL-1 Form, as follows:

“[5] The Applicant claimed that the delay was caused by a combination of factors including his change of address, the time taken in processing his legal aid application, the misapprehension caused by the Director’s invitation for information relating to his claim for non-refoulement protection under Article 2 of the Bill of Rights (“BOR 2”) and the time taken to obtain legal advice. The major thrusts of his explanation are, first, his misapprehension that the Director will re-screen his claim under all four applicable grounds; and second, his misapprehension that the Director will on his behalf inform the Board of his change of address. The questions are whether his misapprehensions are reasonably held and credible.

[6] As for his other explanations, namely, waiting for the outcome of his legal aid application which was never approved and his need to obtain legal advice, they carry no weight against a delay of such magnitude…”

8.The Applicant’s application for leave for judicial review was heard by the Judge on 14 December 2023, at which he was represented by counsel and was granted leave to amend the Form 86 and to file further evidence by way of his affirmation filed on 7 December 2023.

9.In the Amended Form 86 filed through his then legal representative on 28 February 2024, the Applicant raised four intended grounds of review, which may be summarised as follows:

(1)  the Board failed to give adequate consideration to the country of origin information (“COI”);

(2)  the Board erred in law in requiring corroborating evidence from the Applicant to prove his case;

(3)  the Board erred in applying the wrong approach as to the standard of proof which is to be borne by the Applicant; and

(4)  the Board failed to consider all relevant factors in assessing the Applicant’s internal relocation alternatives in Pakistan.

10.On 6 February 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[4] The delay of almost three years and ten months in respect of the [Board’s] First Decision and almost eight and half months in respect of the [Board’s] Second Decision are very substantial. In the absence of a reasonable explanation, leave may be refused on this ground of substantial delay alone without consideration of merits.

…

Credibility and reasonableness of the explanation in respect of the [Board’s] First Decision

[10] The Applicant did not produce a copy of the Director’s letter dated 4 January 2017 to support his claimed misapprehension. He relies on paragraph 1 of the Second Notice quoted above. It appeared that the Director did invite the Applicant to submit additional facts which the Applicant considered relevant to his non-refoulement claim on “all applicable grounds” which he thought relevant and which he may have omitted due to misunderstanding of what applicable grounds means. There is no representation, whether express or implied, that the Director was setting aside his First Notice and to re-assess the Applicant’s claim on all applicable grounds afresh. By no reading of that passage, assuming it was quoted word for word from the Director’s letter of 4 January 2017, could a reasonable reader in the shoes of the Applicant with his disadvantage in his English language capability it to convey the misapprehension claimed by the Applicant. The Director invited submission of facts relevant to all applicable grounds. He never made any express or implied representation that the facts submitted were for the purpose of re-assessing the Applicant’s claim afresh on all applicable grounds.

[11] Furthermore, it is important to note the last sentence of that paragraph, which reads:

“You have been duly notified that a further written decision of your non-refoulement claim on any other applicable grounds, taking into account any new facts submitted and all facts submitted previously under the unified screening mechanism (“USM”), will be made if you have not produced any relevant facts to us by the end of 18 January 2017.” (the Court’s emphasis added)

That last sentence indicates that the Applicant had been informed by a previous correspondence, presumably the letter of 4 January 2017 which he did not produce, that the exercise was related to assessment of his claim under another applicable ground not previously considered, ie BOR 2 risk ground. It is clear that the Director’s intention was to assess the Applicant’s claim on “any other applicable grounds”, ie the BOR 2 risk ground.

[12] As for the phrase “on all applicable grounds” heavily relied on by the Applicant, that phrase was understandably used by the Director to invite the Applicant to submit practically anything which he may consider relevant to his claim for non-refoulement protection so that nothing would have been missed out and no stone would have been left unturned. The Director was doing so in the interest of the Applicant by casting a very wide net to ensure the above purpose will be achieved. Having regard to the factual matrix, it is clear that it never was the Director’s intention to set aside his First Notice issued just 33 days ago and to re-assess the Applicant’s claim on all applicable grounds afresh. By no reading of the passage relied on by the Applicant could it give rise in the mind of a reasonable reader the misapprehension allegedly entertained by the Applicant. This Court does not accept the alleged misapprehension is honestly held by the Applicant. And even if it were, this Court finds an explanation founded on such a misapprehension is not reasonable.

[13] This Court therefore comes to the conclusion that the Applicant has no reasonable explanation for the very substantial delay of almost three years and ten months in applying for judicial review of the [Board’s] First Decision. Following the decision in Po Fun Chan v Winnie Cheung, extension of time for filing the leave application in respect of the [Board’s] First Decision is refused without the need to consider merits of the intended application, prejudice and question of general public importance.

Credibility and reasonableness of the explanation in respect of the [Board’s] Second Decision

[14] As for his misapprehension that the Director will on his behalf inform the Board of his change of address, it is very far-fetched and a very wishful thinking on his part…

[15] The Applicant filed his notice of appeal with the Board on 6 February 2017. On his own admission, he moved to a new address on 1 November 2019. He claims he had informed the Immigration Department of his change of address but did not inform the Board under the misapprehension that the Immigration Department would do so on his behalf. It was only when he reported his recognisance that he came to know that his appeal had been dismissed. It is not his case that he had requested the Immigration Department to inform the Board of his change of address or that the Immigration Department had undertaken to do so on his behalf. He was appealing to the Board against the decision of the Director. He filed the notice of appeal with the Board at a different address from the Immigration Department. He ought to know that the Immigration Department and the Board are two different entities. There is no basis for his belief.

[16] To the Court’s knowledge, non-refoulement claimants are usually released from immigration detention on their own recognizance and have to report to the Immigration Department every now and then, usually once a year. His so called “informed the Immigration Department” is most probably what he did in the course of reporting his recognisance. It is doubtful if his misapprehension is actually held, let alone honestly.

[17] There is no need for this Court to make such a finding. Even accepting that his misapprehension were honestly held by him, his explanation is not a reasonable one. It is not reasonable for him to expect the Immigration Department would inform the Board about his change of address in a matter which is personal to him. The interval between the date of the [Board’s] Second Decision and the date of filing of the leave application is almost eleven and half months. The Applicant had no reasonable explanation for the delay of seven months and seven days from 17 January 2020, the date of the [Board’s] Second Decision, to 24 August 2020 when he took the first step in prosecuting the leave application. He gave an account for a period of four months and five days from 24 August 2020 when he requested for a copy of the Second Decision to 29 December 2020 when [his solicitors] filed the leave application on his behalf. Accepting three months as a reasonable time taken by [his solicitors] to take instructions, obtain documents, consider and give legal advice and file the leave application, a period of one month and five days was not accounted for. In overall terms, he was unable to give a reasonable explanation for a delay of almost eight and half months. That delay is the consequence of his failure to inform the Board of his change of address. On the authority of Karamji Singh, he has to bear the consequence of any delay occasioned by the ineffectiveness of his outdated address. Following Po Fun Chan v Winnie Cheung, the delay is so substantial that leave to apply may be refused by reason of delay alone.

[18] Furthermore, his leave application in respect of the [Board’s] Second Decision has absolutely no prospect of success. He has not even advanced any ground of review against the [Board’s] Second Decision. His grounds of review are all directed at the [Board’s] First Decision. This is understandable because BOR 2 protects against arbitrary deprivation of life by the government of the home state and there is no evidence that the Applicant is subject to a death sentence or at risk of genocide in his home country.

[19] For these reasons, extension of time for filing the leave application in respect of the [Board’s] Second Decision is refused without need to consider prejudice and general public importance.”

THIS APPEAL

11.In his Notice of Appeal dated 20 February 2024, the Applicant contended that the Judge erred in holding that the Applicant’s explanation for his delay in applying for leave to apply for judicial review of the Board’s Second Decision was not reasonable because (1) the Judge failed to properly consider the Applicant’s education level, unfamiliarity with the legal requirements and limited language abilities, and (2) the Applicant had fulfilled his duty to inform the authorities of the change of address by discussing with the Immigration Department.

12.In his 4-page written submissions dated 31 May 2024, the Applicant repeated his allegation that his life would be in danger in his home country.  He complained that the Board “totally destroy[ed him]” and “made many error[s]”, and the High Court “did not look [at his] argument” and gave “[an] one eyes judgment” and did not consider “all [his] points”.  He also complained that there was no oral hearing of his application before the High Court.

13.At the hearing of the present appeal, the Applicant said that the family of Bhatti had also attacked his brother and injured his feet by gunshot.  The Applicant’s family members had scattered across the country to hide away from the Bhatti family and he has no idea of where they are. 

14.At the hearing, the Applicant submitted some scanned copies of a document and attachments (“the Document”) relating to a bail application of one Zeeshan Ali, son of Arif Hussain, before a criminal court of Pakistan for our consideration.  According to the Applicant, the subject matter of this case is the gunshot attack on his brother.  His brother’s name is Saeed Ahmed.   

15.The Applicant did not formally apply to adduce the Document as evidence in the present appeal.  We are of the view that there is no justification in allowing the Document to be admitted as new evidence. Firstly, the Applicant did not file any evidence to explain the reason why he did not put forward the Document for the Judge’s consideration.  The Document was certified in December 2022, much earlier than the hearing before the Judge in December 2023.  Secondly, the petitioner named on the Document is one Zeeshan Ali, son of Arif Hussain, and there is nowhere in the Document indicating that he is of any relationship with the Bhatti family, which is the very aspect that the Board found the Applicant failed to prove. Thus, the Applicant has failed to show that (i) the Document could not have been obtained with reasonable diligence for use in the court below; and (ii) the Document would probably have an important influence on the result of the case.  The conditions required under Ladd v Marshall [1954] 1 WLR are not satisfied and there is no sufficient or exceptional circumstance to justify exercising our residual discretion to admit the Document as new evidence.

16.The Document should not be considered in the present appeal.

DISCUSSION

17.Under Order 53, rule 4 of the Rules of the High Court, Cap 4A (“RHC”), an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

18.We agree with the Judge that the Applicant’s delay of almost three years and ten months in respect of the Board’s First Decision and almost eight and half months in respect of the Board’s Second Decision are very substantial, and the Applicant has failed to provide any reasonable explanation for the delay. 

19.As for the merits of the appeal, in non-refoulement cases, the court will not intervene by way of judicial review unless it is shown that there are errors of law, or procedural unfairness, or irrationality in the decision of the Board.  The assessment of evidence, COI, risk of harm, state protection, and viability of internal relocation are matters for the Board (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1)).  No such error of law or procedural unfairness or irrationality in the decisions of the Board is shown in the present case.

20.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)).

21.Dealing firstly with Applicant’s complaint that he was not given an oral hearing, there is no basis for this complaint.  As mentioned above, an oral hearing was held before the Judge on 14 December 2023, at which the Applicant was represented by counsel.

22.There is no merit in the Applicant’s complaint that the Judge erred in holding that the Applicant’s explanation for his delay in respect of the Board’s Second Decision was not reasonable.  His explanation was adequately dealt with by the Judge at §§14-17 at the CALL-1 Form as set out in paragraph 10 above.

23.Finally, the Applicant's complaint that the Judge failed to consider all his arguments has no merit. In respect of the Board's First Decision, the Judge considered that the Applicant had no reasonable explanation for his substantial delay of almost 3 years and 10 months in making the leave application, and held that the application for extension of time should be refused without the need to consider the merits of the intended application, prejudice or question of general public importance, following the approach stated by Litton PJ in PO Chung Chan v Winner Cheung (2007) 10 HKCFAR 676 at 693B to C. In any event, even if the Judge ought to have considered the merits of the intended application, we have considered the Applicant's intended grounds of judicial review of the Board's First Decision, and are clearly of the view that none of them is reasonably arguable. In respect of the Board's Second Decision, the Judge considered that the Applicant had no reasonable explanation for his substantial delay of almost 8½ months in making the leave application, and the application for leave had absolutely no prospect of success because the Applicant had not even advanced any ground of review of the Board's Second Decision.

24.The Applicant’s appeal against the Order has no merits and is dismissed.

The Applicant, acting in person

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

[2] This refers to the 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.

[3] 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.

[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.