RE MUSHTAQ AHMAD

CAMP 106/2021

[2021] HKCA 1260

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 106 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 649 of 2018)

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 31 August 2020 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation in support of his application.  He had also lodged a written submission on 16 June 2021 to support his application.  

3.  Under Order 59 rule 2A(5)(a)  of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dated 10 April 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”)  dated 17 May 2017 rejecting his non-refoulement claim.

5.  The applicant is a national of Pakistan aged 57.  He entered illegally and was arrested by the police on 22 December 2012.  He later raised a non-refoulement claim. 

6.  The applicant’s claim is based on his fear of being harmed or killed by the Sunni Muslims because he has converted to the Ahmadi religion.  The details of the applicant’s claim were set out in the decisions of the Director and the Board, and summarised by the Judge in the Form CALL-1 dated 31 August 2020[1] at [2] to [5].  We will not repeat them.    

7.  By his decision dated 17 May 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds.

8.  The applicant appealed the Director’s decision to the Board.  A hearing was held on 11 December 2017.  By its decision dated 10 April 2018, the Board dismissed the appeal.  Primarily, the Board did not find the applicant a witness of truth and did not accept he had converted from Sunni Islam to the Ahmadi faith.  The Board found there is no real risk that he would face any of the prescribed form of harm should he return to Pakistan, and concluded that none of the applicable grounds was made out.

9.  On 16 April 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  He did not put forward any grounds for seeking relief.  He merely stated in the supporting affirmation that his life would be in life and asked to be allowed to remain in Hong Kong.

10.  On 31 August 2020, the Judge dismissed the application for leave to apply for judicial review and gave his reasons in [11] to [15] of the Form CALL-1 as follows: 

“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. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 36 – 46 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.

13. 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, 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.

14. 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.

15.  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.”

11.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal. 

12.  By a summons filed on 23 September 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 7 January 2021, and by his decision handed down on 4 March 2021[6] refused the application. On 9 April 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.    

13.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted. 

14.  The applicant was late by nine days.  He stated in the summons that he did not receive the decision in time.  He also explained at the hearing before the Judge that he was not aware of the 14-day time limit and by the time he could find help to prepare the necessary documents to appeal he was already out of time.  Like the Judge, we would focus on the merits of the intended appeal, having regard to the fact that the applicant was unrepresented and his delay is not substantial. 

15.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  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.  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.

17.  In the present application, the applicant has not set out any proposed ground of appeal in his summons and his supporting affirmation. 

18.  In his written submission, the applicant reiterated his claim, and stated that it is true.  He also stated that it is not possible for him to return to Pakistan as all the people there are his enemies.  He pointed out that under the law in Pakistan, Ahmadis are regarded as non- Muslim, and his family members, who have not converted, will inform others about his return to and presence in the country.    

19.  The matters put forward by the applicant do not amount to viable grounds of appeal.  In the first place, he has not pointed to any error in the Judge’s decision and reasons. Further, given the Board’s rejection of his case based on adverse finding of credibility, there is no evidential basis to support his assertion that he will face risks of harm if refouled. 

20.  We have separately considered the Board’s decision on the applicant’s appeal against the Director’s decision.  We agree with the Judge that it has not been shown there are legal errors, irrationality or procedural irregularities in the Board’s decision, and the intended judicial review application had no prospect of success.  The Judge was right in refusing to give leave to apply for judicial review and dismissing the application.      

21.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to give leave to apply for judicial review has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  

22.  For the above reasons, we dismiss the applicant’s summons filed on 9 April 2021.