RE IQBAL JAVED

CACV 39/2022

[2023] HKCA 61

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 39 OF 2022

(ON APPEAL FROM HCAL NO 2049 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  on 14 January 2022[1] refusing to extend time for and grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 28 December 2017.  In that decision, the Board upheld the decisions of the Director of Immigration (“Director”)  dated 29 June 2015 and 3 November 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Pakistani national and a Shia Muslim.  He had been found guilty of overstaying in Hong Kong before in 2001 for which he was sentenced to 3 months’ imprisonment before being removed to Pakistan in August 2001.  He came to Hong Kong again, illegally, on 11 June 2006, and had submitted a refugee application to the UNHCR on 12 June 2006 which he did not follow up.  He surrendered himself to the Immigration Department on 10 January 2008, and raised his non-refoulement claim on 17 November 2010 by written representation.

3.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by Sunni Muslims due to their conflict with the Shiites.  He also claimed to fear that he would be killed by his brother-in-law in Pakistan because he had entered into a spousal relationship with an Indonesian woman in Hong Kong, while still married to his wife in Pakistan.  The factual background was set out at paragraphs 16.1 to 16.19 of the Director’s decision of 29 June 2015.

4.  By notices of decision dated 29 June 2015 and 3 November 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The former covered BOR 3 risk,[2] persecution risk,[3] and torture risk;[4] the latter covered BOR 2 risk.[5]

5.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 12 January 2017, during which the applicant answered questions from the Board.  The Board found the applicant’s reasons for seeking non-refoulement protection to be unconvincing and lacking in credibility because, inter alia, even on his own evidence, he was never personally targeted, threatened or harmed by Sunni Muslims, and the alleged threats from his brother-in-law were mere hearsay. The Board also noted that the applicant did not lodge his non-refoulement claim until November 2010 and considered that his explanation (namely, that he had no knowledge about it)  was incredible given that the applicant had lodged a refugee claim with the UNHCR in 2006.

6.  In addition, the Board considered that even on the applicant’s narrative, he had not suffered any severe pain or suffering.  Thus the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that relocation within Pakistan (other than in Gujjarkhan)  was viable.  As a result, in its decision issued on 28 December 2017, the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

7.  Almost 9 months later, and long after the expiry of the 3-month time limit prescribed by Order 53 rule 4(1)  of the Rules of the High Court (Cap 4A), on 27 September 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  However, he did not set out any grounds for judicial review either in his Form 86 or his supporting affirmation.

8.  Following consideration of documents only, on 14 January 2022 the Judge refused to extend time for the applicant to seek leave, and refused to grant leave, to apply for judicial review.  His reasons were set out at [13] – [18] of the Form CALL-1 as follows:

“ 13. As mentioned in paragraph 1, this application is late. In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted. The delay is, of course, serious. However, I shall first consider the merits of the applicant’s case.

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1)  … …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.’

16.  He does not have any valid ground to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

Appeal to this Court

9.  On 19 January 2022, the applicant filed his Notice of Appeal against the Judge’s decision.  In the Notice of Appeal, he stated that he will show the Board’s error that the Judge did not find, and that he did not get justice.  However, he did not provide any details or particulars.

10.  On the same day that he filed the Notice of Appeal, the applicant agreed in writing for the appeal to be disposed of on paper without an oral hearing.

11.  The applicant lodged his written submissions for the appeal on 4 February 2022.  In his written submissions, the applicant submitted that there were the following errors: (1)  the claim should be granted; (2)  there is no “catagory to give the decision” [sic]; (3)  there was only a loss of the applicant’s time; (4)  the Board used its opinion, not the law; and (5)  the claim is true but the Board said it was false.  However, in those submissions the applicant did not provide any details or particulars in support of these allegations.

Discussion

12.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review. 

13.  As mentioned above, in his submissions the applicant did not provide any particulars in support of his arguments or as to any specific errors in the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

14.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

15.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection, mainly due to the Board’s finding that even on the applicant’s narrative, he was never personally targeted, threatened or harmed by Sunni Muslims and he had not suffered any severe pain or suffering.  Thus the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable. These findings are within the province of the Board.  The court will not interfere with such assessments unless they are vitiated on public law grounds.  There seem to be no such grounds in this case.

16.  Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave.  There is no reasonably arguable ground to challenge his decision.

17.  For these reasons, this appeal is dismissed.