RE ISHAQ MUHAMMAD alias MOHAMMAD ISHAQ

CAMP 550/2021

[2022] HKCA 256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 550 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1204/2018)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”)  dated 28 April 2021 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 15 June 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 15 November 2016 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 7 February 2008, and was subsequently arrested by the police on 9 July 2008.  The applicant thereafter lodged a non-refoulement claim on 17 July 2008.

3.  The applicant’s claim was based on a fear of being harmed or killed by an opposing religious group.  The details of the applicant’s claim have been summarised by the Judge at [1] to [5] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 15 November 2016, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 14 March 2018, the Board dismissed the appeal on 15 June 2018.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found that the applicant had exaggerated his claim and that in any event state protection was available to him.   

The Judge’s decision

6.  The applicant filed a Form 86 on 27 June 2018 seeking to judicially review the Board’s Decision[6], without setting out any grounds of review.

7.  In his supporting affirmation, he stated that the Board was (i)  unreasonable; (ii)  failed to consider all the matters raised in his claim; and (iii)  failed to give adequate reasons for its Decision.

8.  After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [10] to [16] of the CALL-1 Form:

“10.  On 27 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

  (1)  that the Board failed to consider all the matters raised in the Applicant’s his claim; and

  (2)  that the Board failed to give accurate reasons for its decision.

11.  These are however all just broad and vague assertions of the Applicant 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 Board fail to consider all the matters raised in his claim or to give reasons for its decision which the Board in fact did give ample reasons as set out in paragraphs 18 – 20 of its decision. As such and in the absence of any error of law or irrationality 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 either grounds of the Applicant reasonably arguable for his intended challenge.

12.  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.

13.  In the Applicant’s case, the Board rejected his claim essentially on its finding that there was no evidence of any religious or political reason behind his personal dispute with his fellow villager and that state/police protection would be available to the Applicant to negate any risk of threats against him for the thorough and detailed analysis and reasoning set out in the 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.  

14.  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 for which state/police protection would be available that it is not unreasonable or unsafe for him to relocate to other parts of Pakistan, a decision also confirmed by eth 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.

15.  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.

16.  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 present application for extension of time to appeal

9.  The applicant’s address as stated in his Form 86 was at Shiu Yat Building, 8 Chun Yin Square, Yuen Long (“the Yuen Long Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Yuen Long Address on 28 April 2021. The letter was returned to the court on 2 June 2021 and was marked “refused”.

10.  The applicant took out a summons in the Court of First Instance on 10 June 2021 seeking extension of time to appeal, in which his address was still stated to be the Yuen Long Address.  In his supporting affirmation filed on the same date, he alleged that he did not receive any letter from the court. 

11.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  As is evident from the foregoing, the applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 28 April 2021.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 19 October 2021[7].

13.  By a summons filed on 7 December 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and his supporting affirmation, the applicant simply repeated his wish for the court to grant an extension of time to appeal without identifying any grounds of appeal.

14.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court.  He is thus deemed to have abandoned his right to rely on written submissions.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

16.  Notwithstanding the return of the court’s letter dated 28 April 2021 sent to the Yuen Long Address, we note that there has been no change in the applicant’s address from the filing date of the Form 86 to the taking out of his summons for extension of time in the court below on 10 June 2021.  The returned letter, which was received by the court on 2 June 2021, was said to have been “refused”.  The inference to be drawn is that the applicant or whoever was residing at the Yuen Long Address had refused to accept it, causing it to be returned to the court in the post.

17.  The applicant has proffered no reason or explanation as to why the court’s letter was refused, or for his delay in bringing the intended appeal.

18.  In the circumstances, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.

19.  We have nonetheless proceeded to consider the merits of the intended appeal.

20.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

21.  The applicant has failed to state any viable ground of appeal or to identify any arguable error of law by the Judge, point to any relevant matter that he had failed to consider or any other reason why the Judge’s refusal of leave was wrong.  Nor can we discern any such matters.  As we have often stated an appeal does not serve as a secured application for judicial review.  This court will only intervene if some error is demonstrated in the judgment below.  

22.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal, and the summons filed on 7 December 2021 is accordingly dismissed.