RE AHMAD IFTIKHAR

CACV 227/2019

[2022] HKCA 165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 227 OF 2019

(ON APPEAL FROM HCAL 532 OF 2018)

__________________________

__________________________

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JUDGMENT

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Hon Kwan VP (handing down the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Lam VP (as he then was) and Bharwaney J) handed down on 9 September 2019 ([2019] HKCA 1023). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge Bruno Chan dated 17 May 2019 ([2019] HKCFI 427) refusing to grant leave for the applicant to seek judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 11 August 2021 that the applicant shall lodge written submissions on or before 25 August 2021. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant has not lodged his written submissions as directed. Having considered the papers of this case, we think it is appropriate to determine this application on paper and will proceed accordingly.

3.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 11 January 2015 and was arrested by the police on the same day. On 15 January 2015, he raised a non-refoulement claim on the basis that he will be harmed or killed by his uncle and cousin because of a land dispute between them if he returns to Pakistan.

4.  His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 22 September 2017. His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 2 March 2018.

5.  He filed a Form 86 on 3 April 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board. DHCJ Bruno Chan dismissed the leave application on 17 May 2019.

6.  On 27 May 2019, the applicant filed a notice of appeal against the judge’s decision. The applicant attended the hearing before the Court of Appeal on 3 September 2019. The appeal was dismissed by the Court of Appeal on 9 September 2019. The applicant filed a Notice of Motion out of time on 11 August 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

7.  The applicant stated the following grounds of appeal in the Notice of Motion:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director in refusing his application for leave for judicial review;

(2)  There is some error in the decision. The decision maker just relied on the country of origin information (COI) and the previous facts which were favourable to rejecting his claim;

(3)  Real life situation is different from the COI. The officer and the courts prefer to ignore the overwhelming evidence of violence towards minorities searching for unrealistic silver lining;

(4)  The judge did not apply the law properly.

Analysis and disposition

8.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal.

9.  Good grounds have to be shown by the applicant for the court to grant an extension of time. The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena[2019] HKCA 959 at §1.4).

10.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

11.  The applicant’s application was late for nearly 20 months. The delay is very substantial. He stated in his affirmation that he is detained by the Immigration Department at present and that he did not receive any correspondence from the court regarding the dismissal of his appeal. As mentioned above, the applicant was present at the hearing of his appeal on 3 September 2019. He was informed at the hearing that the judgment would be handed down on 9 September 2019 and that the judgment would be sent to him by post if he did not come to collect it. The applicant did not collect the judgment from the court on 9 September 2019 and the judgment was sent to his address (which was confirmed by him at the hearing) by post. Even if he really did not receive the judgment by post, he should have known that the judgment was handed down and should find out the outcome either by making enquiry with the court or searching for it from the Judiciary’s website. Under these circumstances, his explanation for the substantial delay is not justifiable.

12.  In any event, his grounds of appeal were not previously raised in his appeal and are just bare assertions without particulars, elaboration or evidence in support. He has not demonstrated that the Court of Appeal was wrong in its decision. Besides, the applicant has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

13.  For the above reasons, we decline to exercise our discretion to grant extension of time for the applicant to file his Notice of Motion out of time on 11 August 2021 and dismiss his application for leave to appeal to the Court of Final Appeal.

CACV 227/2019

[2019] HKCA 1023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 227 OF 2019

(ON APPEAL FROM HCAL 532/2018)

________________________

__________________________

________________________

JUDGMENT

________________________

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 17 May 2019 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 22 September 2017 and the decision of the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 2 March 2018.  In the former decision, the Director rejected the applicant’s claim for non-refoulement protection in Hong Kong, and, in the latter decision, the Board upheld the said decision of the Director.

Background

2.  The applicant is a national of Pakistan.  According to him, he left Pakistan for the mainland China (via Thailand) on 8 January 2015.  He entered Hong Kong illegally on 11 January 2015, and was arrested by the police on the same day.  He lodged his claim for non-refoulement protection by written representation dated 15 January 2015[1].

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed, or even killed, by his uncle and cousin because of a land dispute between them.  The brief facts of this case were set out by the Judge in [2] – [6] of the Form CALL-1 ([2019] HKCFI 427).

4.  By a notice of decision dated 22 September 2017, the Director assessed the applicant’s claim on all applicable grounds, including the risk of violation of absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights (particularly, the BOR 2 risk[2] and the BOR 3 risk[3]), the persecution risk[4], and the torture risk[5]. The Director decided the case against the applicant.

5.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  An oral hearing was held on 9 February 2018, the Board dismissed the appeal/petition on 2 March 2018.  In its decision, the Board found the evidence of the applicant unreliable and suspicious. It found that state protection was available in Pakistan.  It also found that the applicant did not suffer any injuries, not to mention injuries attaining the minimum level of severity.  The Board concluded that the applicant would not face any genuine and substantial risk of being ill-treated if refouled.

The judge’s decision

6.  The applicant filed his Form 86 on 3 April 2018, seeking leave to apply for judicial review against the Director’s and the Board’s decisions.  The grounds for seeking reliefs as stated in the Form 86 were set out in [11] of the Form CALL-1.

7.  The Judge held an oral hearing on 29 January 2019. 

8.  As mentioned earlier, the Judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave were set out in [12] – [17] of the Form CALL-1 as follows:

“ 12. These are however just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in the decision,or in what way were their decisions unfair or unreasonable, or what relevancy was extra-judicial killings to his claim, or how did the adjudicator fail to give him sufficient time or opportunity to produce his evidence in support of his claim. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, nor did he at the hearing of his application now before me produce any further evidence in support of his claim which he might have not been given the time or opportunity to do so before the Board. As such I do not see any basis or merits in any of his complaints.

13. As has been repeatedly emphasized by the Court of Appeal, 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 being 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; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Re Litoun Mounsy[2018] HKCA 537.

14. In the applicant’s case, the adjudicator had the benefit of hearing him in evidence during the appeal hearing and had set out his careful analysis and detailed findings in the decision based on all the evidence and information available before the Board, and in the absence of any error being properly identified by the applicant, I do not see any reason to disturb or interfere with the Board’s evaluation of the risk of harm asserted by the applicant.

15. Furthermore, the fact that it has been established by the Director in his 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, with which no doubt the Board agreed when it confirmed the Director’s decision, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16. 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.

17.  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.”

The appeal

9.  On 27 May 2019, the applicant filed a notice of appeal.  In it, the applicant advanced the following grounds of appeal:

“ … the gravity of my circumstances have noted been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.” (sic)

10.  The applicant lodged his written submission on 30 July 2019.  In it, he cited ST v Director of Immigration [2014] 4 HKLRD 277 and quoted passages from Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 for the proposition that high standards of fairness are required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner in dealing with his application.  He also made reference to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  Lastly, the applicant referred to section 37ZT for the late filing of the notice of appeal.

11.  By a letter dated 27 May 2019, the applicant gave consent for this appeal to be processed by a 2-judge court.

12.  We heard the appeal on 3 September 2019.

General principles

13.  Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases.  

(1)  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review. 

Discussion

14.  In the present case, the Board rejected the applicant’s claim due to the finding on the availability of state protection, as well as the lack of genuine and substantial risk of harm if refouled.  As explained by the Judge at [13] of the Form CALL-1, such assessments are within the province of the Board.  The court will not interfere with them unless they are reversible on the public law grounds.  Having considered the matter with rigorous examination and anxious scrutiny, the Judge did not find any reasonable prospect of success to challenge the assessments of the Board in the intended judicial review.

15.  Essentially, what was stated in the notice of appeal was an invitation to this Court to reassess the applicant’s claim afresh.  As explained, this is not a course we would adopt in an appeal against refusal of leave when the applicant has not pinpointed any error on the part of the Judge.

16.  The applicant provided no particulars as to how the Board acted in a procedurally unfair manner.  We cannot find any basis for accepting such general assertion.   

17.  We cannot see any relevance of section 37ZT in the present appeal.

18.  We agree with the Judge that leave to apply for judicial review should be refused.

19.  For these reasons, we dismiss the appeal.