RE NASEER MUHAMMAD

CACV 493/2020

[2021] HKCA 1113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 493 OF 2020

(ON APPEAL FROM HCAL NO 451 OF 2019)

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________________________

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J U D G M E N T

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Hon Coleman J (giving the Judgment of the Court):

1.  On 26 April 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and Coleman J) judgment of 9 April 2021 (“the Judgment”) [2021] HKCA 491. In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge CP Pang dated 14 September 2020 (“the Deputy Judge’s Decision”).

2.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal (“CFA”) at the discretion of this Court or the CFA if 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 CFA for decision.

4.  In his Notice of Motion, the applicant raised the following intended grounds of appeal:

“1) i did not failure to lodge the skeleton submission would cost me an oral hearing. i specially requested for one. i relied too much on friends and NGO’s to help me out from this situation bcz i dont have any knowledge about the judicial review system in hong kong as i did not get any translation from friends and NGO’S.

2) judges were procedurally unfair in my decision because as i mention before that i dont have any knowledge about judicial review system in hong kong but i asked help from one of my friend to submit written submission for me but later i does not work. i requested for the legal aid to provide me a legal adviser to help me out but they refused it.

3) as the judges mention that they are unable to found the erred in TCAB or NOD decision. i dont have any inconsistence in my hearing even i gave prove to the TCAB and NOD but still they give decision against on me. The TCAB and NOD give decision on the basis of other applicant but. my case is genuine and real its not a story i can provide more proof if they asked me that but still i can provide now and i can make it proof that my case is genuine and real but they dont judge on the basis of other applicant from our country. the court of first instance did not judge fair the decision of TCAB AND NOD

so kindly give me extension to solve my problem by the help of villagers but its take to talk with my uncle and try to agree them to get half of my land by the help of village senior.”[sic]

5.  In his written submissions of 6 May 2021 filed pursuant to the directions of Registrar of Civil Appeals, the applicant quoted passages from Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and that the Board had acted in a procedurally unfair manner without properly assessing the applicant's credibility.  Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is about the late filing of notice of appeal to the Board.

6.  In our view, the applicant’s application is totally without merit.

7.  First, it was misconceived for the applicant to argue that his failure to lodge written submissions deprived him of an oral hearing.  The applicant’s application for leave to apply for judicial leave was made out of time, and he did not ask for an oral hearing.  The hearing of the applicant’s appeal against the Deputy Judge’s Decision was held on 29 March 2021, during which the applicant was present with the assistance of an interpreter.  When asked, the applicant said he had nothing to add to his application: see [10-12] of the Judgment.

8.  Second, the applicant’s complaint of lack of legal assistance also has no merit.  Such complaint was not raised before us and it is therefore new.  As this Court stated at [20] of the Judgment, new arguments that are not canvassed before would not generally be entertained. Further and in any event, this Court has emphasised repeatedly that as a matter of law, a non‑refoulement claimant is not entitled to free legal representation at all stages of the process: see Re Zunariyah[2018] HKCA 14 at [18]; Re Zahid Abbas[2018] HKCA 15 at [11] and Re Tariq Farhan[2018] HKCA 17 at [11].

9.  Third, the rest of the grounds in his Notice of Motion and written submissions are against the Torture Claims Appeal Board and the Director of Immigration.  They are therefore not viable grounds of appeal against the Judgment.

10.  In the circumstances and in any event, we also do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

11.  For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the applicant’s Notice of Motion.

CACV 493/2020

[2021] HKCA 491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 493 OF 2020

(ON APPEAL FROM HCAL 451 OF 2019)

________________________

________________________

____________________

J U D G M E N T

____________________

Hon Coleman J (giving the Judgment of the Court):

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge CP Pang (“the Deputy Judge”) set out in the Form CALL‑1 dated 14 September 2020 refusing to grant extension of time for him to apply for leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 2299.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 12 October 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 December 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  The applicant filed his Notice of Appeal on 21 September 2020.  As he did not advance any grounds of appeal therein, the Registrar of Civil Appeals directed him to file a supplemental Notice of Appeal which was provided on 22 December 2020, but which still failed to advance any grounds of appeal.  By a letter dated 21 September 2020, the applicant gave consent to the appeal being heard by a two-member court.

A.      Background

4.  The applicant is a national of Pakistan.  He entered Hong Kong on 6 October 2015 illegally and was arrested on the same date.  On 4 November 2015, he lodged a non-refoulement claim.

5.  The details of the applicant’s claim and his personal background were set out in paragraph 7 of the Director’s Decision, and paragraphs 3-10 of the Board’s Decision.

6.  The applicant claimed that he would be harmed or killed by his uncle, Hashim Khan (“Khan”), Khan’s son Qasim and their associates because Khan wanted a land the applicant and his father inherited from his grandfather.  He also claimed that Khan and Qasim were supporters of Pakistan Muslim League (“PMLN”), the opposition of which was Pakistan Tehreek-e-Insaf (“PTI”), a party that the applicant belonged to.  The applicant claimed that he was assaulted by Khan, Qasim and two other unknown men in mid-2014.  He was hospitalized for 10 to 20 days for the injuries.  After he left the hospital, he went to another village to avoid them.  Eventually, out of fear, he fled to Hong Kong for protection. 

B.      The Director’s Decision and the Board’s Decision

7.  The Director assessed the BOR3 risk^[1], the persecution risk^[2], the torture risk^[3] and the BOR2 risk^[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s Decision to the Board.  A hearing for the appeal was held on 28 May2018, during which the applicant answered questions from the Board with the assistance of an interpreter.  Having considered the oral evidence and the materials before it, the Board concluded that the applicant had failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed his appeal.

9.  The Board reminded itself of the applicable legal principles before reaching the conclusion that the applicant was not a credible witness.  Whilst there might be some credence that the applicant was assaulted by Khan and his men, the Board found that it was a one-off and isolated incident.  Since there was sufficient state protection, the Board dismissed the applicant’s claim. Further, on a separate basis, the Board found that internal relocation to Rawalpindi where the applicant used to live safely was an option (paragraphs 44-53 of the Board’s Decision).   Thus, the Board dismissed his appeal.

C.      The Deputy Judge’s Decision

10.  The applicant filed a Form 86 on 18 February 2018 seeking leave to apply for judicial review against the Board’s Decision.  He did not request an oral hearing.  In his supporting affirmation filed on the same date, he simply stated that he was not satisfied with the Board’s Decision and his life would be threatened upon refoulement.  Since the applicant’s leave application was out of time, after reviewing the available documents, the Deputy Judge refused to grant extension of time to the applicant as there was no reasonable arguable ground.  He set out his reasons at paragraphs 9-19 of the Deputy Judge’s Decision:

“Discussion

9. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration[2018] HKCA 524 at paragraph 14. 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

10. As the Director’s decision has been superseded by the Board’s decision, is not susceptible to judicial review: Re Moshsin Ali[2018] HKCA 549 . Therefore, while the Court examines the decisions of the Director and the Board, the Observations for the Applicant will only focus on the latter’s decision.

11. The applicant’s intended application for judicial review was made out of time. Order 53, rule 4 (1) of the Rules of the High Court , Cap 4A 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 unless the court considers that there is good reason for extending the period within which the application shall be made. In considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393 .

12. The relevant principles have been further explained in the recent case of H v Director of Immigration and AH v Director of Immigratio n FACV 1 and 2 of 2020 (heard together) given on 14 July 2020. Briefly, the following are principles relevant to the present case: (a) an application made outside the three-month period will entail undue delay; (b) as such, an extension of time is required, and to justify an extension of time, the applicant must show good reason for extending the period; among the various factors likely to be significant are the merits of the substantive application; (c) indeed, even if there exists good reason for undue delay, the grant of leave to commence judicial review will also depend on the arguability test (among other factors); the arguability test requires the applicant to demonstrate to the court that his case is one that enjoys realistic prospects of success: Re Mohamed Cassim Jawfar CAMP 16/2020, [2020] HKCA 633 para 15.

13. The application was late by more than one month. Though the delay was not a very substantial one, the applicant did not provide any explanation for it.

14. As for the merits of the intended application, far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

15. In the present case, the Board rejected the applicant’s appeal/ petition as it disbelieved the applicant and found that his claimed fear was far-fetched and fanciful. It also found that state protection and local relocation are available to the applicant.

16. As mentioned, assessment of risk of harm, state protection and viability of internal relocation are all within the province of the Board and the Director, this court will not interfere with the decisions unless there is a public law ground for the Court to do so. Even on his own account, the past ill treatment was of low intensity and frequency. It came nowhere near the level of severity required to substantiate his claim for protection.

17. His complaint in the Form 86 and affirmation did not pinpoint any procedural irregularity, unfairness or unreasonableness of the Board.

18. The records show that the Board engaged in a joint endeavour with the applicant and considered all relevant criteria, gave the applicant a reasonable opportunity to state his case, and enquired into the issues appropriately. There cannot be any criticism of its determination which is eminently reasonable.

19. 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, irrational findings, or procedural unfairness in either of them. Nor do I find any failure on their part to apply high standards of fairness.”

D.      Grounds for appeal

11.  The applicant did not advance any grounds of appeal in either the Notice of Appeal or supplemental Notice of Appeal.  He listed several grounds in his skeleton submissions filed on 21 January 2021.  However, it suffices for us to note that most of the grounds are directed against the Board and/or the Director.  The only ground directed against the Deputy Judge was that the applicant claimed to request an oral hearing but the court did not accede to his request.  However, from the available court documents, we do not see any request from the applicant for an oral hearing before the Deputy Judge.  This is not a viable ground.  Other than this, the applicant did not identify any errors in the Deputy Judge’s Decision.

12.  At the hearing, the applicant confirmed that he had nothing further to add to what had already been set out in the written submissions.

E.      Discussion

13.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration[2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

14.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

15.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  Third, 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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

17.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

18.  Bearing these principles in mind, we are of the view that this appeal has no merit.

19.  First, the grounds and arguments advanced by the applicant in the written submissions are all directed at the Director’s and Board’s Decisions.  They do not show in any respect any error in the Deputy Judge’s Decision.  They are therefore not viable grounds of appeal.  On this basis alone, the appeal should be dismissed.

20.  Further and in any event, all those grounds now made against the Board and the Director were not advanced before the Deputy Judge.  As this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor[2019] HKCA 510 at [12]; Re Md Iqbal[2019] HKCA 912 at [13(3)]; Re Sudimah[2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O[2019] HKCA 1031 at [13(3)].

21.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.       Disposition

22.  For all these reasons, we dismiss the appeal.