RE ZUBAIR MUHAMMAD

CAMP 257/2021

[2022] HKCA 962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 257 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2054 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 22 September 2020, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant for judicial review concerning his non-refoulement claim and dismissed his leave application (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“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 28 April 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 24 June 2021.

3.  On 16 July 2021, the applicant filed his summons in CAMP 257/2021 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 16 July 2021, the applicant should lodge his written submissions on or before 30 July 2021.  The Registrar further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

5.  However, the applicant only lodged the written submissions on 16 August 2021.  He failed to give any reason for his delay.  As such, the applicant’s written submissions will not be considered by this Court.

6.  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

7.  The applicant is a national of Pakistan. He gave inconsistent evidence as to when he entered Hong Kong illegally (November 2013 or August 2014).  He was arrested by police on 1 September 2014.  On 3 September 2014, he lodged a non-refoulement claim alleging that if refouled, he would be harmed or killed by the local supporters of rival political party Pakistan Muslim League (N) (“PML(N)”) as he was a supporter of political party Pakistan Tehreek-e-Insaf (“PTI”). The factual background of this case was succinctly summarised by the Judge at [2] to [4] of the JR Decision ([2020] HKCFI 2378).

8.  By the Notice of Decision dated 11 January 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

9.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 22 June 2018 and by its decision dated 13 September 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [35] to [40], the Board did not accept the applicant as a truthful witness and found that he had manufactured the entirety of his claims.  The applicant’s evidence in relation to an alleged fight with some villagers from PML(N) in August/September 2013 was vague and unpersuasive, and he failed to demonstrate any in-depth knowledge about PTI.  In fact, even on his own case, he was only involved in PTI for 7 to 8 months and had only a minimal role.  As such, the Board did not accept that he had the level of political involvement in the PTI, or was of any adverse interest to the PML(N), at the time he left Pakistan to result in any real risk of harm upon his return to the country.  For the aforesaid reasons, his non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

10.  On 27 September 2018, the applicant filed a Form No. 86 together with a supporting affirmation to apply for leave to judicially review the Board’s decision, and he advanced the following grounds for his intended challenge:

(1)  misdirection in law in that the adjudicator took into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and in failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and in cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether there is a consistent pattern of gross and mass violation of human rights in Pakistan;

(5)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirection as to the extended meaning of state protection;

(6)  irrationality in the Board’s decision in taking into account and putting weight on irrelevant consideration or based on incorrect or inaccurate facts;

(7)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports of the Applicant;

(8)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in the decision; and

(9)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.

The JR Decision

11.  The applicant attended an oral hearing on 1 September 2020.   After due consideration of the decisions of the Director and the Board, the Judge refused to grant leave to the applicant to apply for judicial review for reasons set out in [10] - [16] of the JR Decision:

“10.  All these however appear to me standard pro forma grounds commonly used in this type of application but not relevant to the Applicant’s case, or are 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 Board or the adjudicator had erred in the decision, 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 why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

11.  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.

12.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

13.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

14.  Essentially the Board rejected his claim on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 29 – 40 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

15.  Furthermore, the fact is 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, a decision also confirmed by the Board, 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.”

Application for extension of time to appeal the JR Decision

12.  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 28 April 2021 for an extension of time to appeal.  That was dismissed by the Judge on 24 June 2021.   Hence, the Summons to this court.

Discussion

13.  In considering whether to extend time for appealing, 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).  As for (1), the applicant was late by more than 6.5 months between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.   

14.  As for (2), the reasons for the delay, the applicant claimed in his supporting affirmation that he did not receive the JR Decision.  It was a bare assertion without any supporting evidence.  The court file showed that the JR Decision was sent to his last known address as reported to the Immigration Department and it was not returned by the post.  In the circumstances, the Judge was not satisfied that the applicant had provided any good reason for his substantial delay.  We agree with the Judge’s conclusion on this issue.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant failed to provide any proper or valid ground of appeal to point to any error in the JR Decision.  The Judge concluded that there is no realistic prospect of success in the intended appeal and refused to extend time for an unmeritorious application. 

16.  In his summons and supporting affirmation filed with this Court, the applicant did not provide any grounds for his intended appeal either, except for requesting this Court to grant extension of time to him to file his appeal.

17.  It is clear from the Board’s decision that the applicant’s claim was rejected on the issue of credibility as his evidence was vague and lacking in details.  For instance, he did not know when his party was founded, and he was substantially wrong when answering questions as to the number of seats it held.  He was unable to elaborate on the alleged political debate which led to the alleged assault on him. With unsatisfactory evidence like that, it was perfectly open for the Board to reach its findings and conclusions, and the Court would only intervene if there were valid public law grounds.  We do not see any in this case.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.   

18.  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 16 July 2021.