RE HUSSAIN AZHAR

CAMP 9/2020

[2020] HKCA 641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 9 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 380 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 24 May 2019, DHCJ Bruno Chan (“the Judge”) refused to give the applicant leave to apply for judicial review proceedings concerning his non-refoulement claim (“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. The deadline was therefore 7 June 2019.

2.  The applicant did not lodge an appeal in time.  It was not until 16 September 2019 (some 2 months after the deadline, even excluding the court vacation) that the applicant filed a summons in the Court of First Instance (“CFI”) for extension of time to appeal.  That summons was dismissed by the Judge on 25 November 2019 (“the Extension Decision”). 

3.  By summons filed in CAMP9/2020 in the Court of Appeal on 10 January 2020, the applicant applied to this court for an extension of time to appeal the JR Decision.  

4.  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. The applicant did not file written submissions pursuant to the directions made by the Registrar of Civil Appeals.  

Background

5.  The brief background is as follows.  The applicant is a national of Pakistan.  He claimed he supported a new political party, Pakistan Tehreek-e-Insaf (“PTI”) by promoting it and joining demonstrations and meetings.  He said in 1 incident in June 2013, supporters of the ruling party Pakistan Muslim League (Nawaz) (“PMLN”) attacked a group of people including himself during a volleyball game.  He speculated that the PMLN group knew he was a PTI supporter from his photograph in posters, but he gave inconsistent evidence as to whether he was involved in the skirmish.  In any event, he was not injured.  After intercession by some elders, the PMLN group left and they carried on playing volleyball.  About a month later, some PMLN supporters blocked some coaches, including one he was a passenger in.  The police came and the coaches then proceeded.  There was only some pushing between groups.  He was not injured.  He said he then received some threatening calls on his telephone from unknown persons, and he then decided to leave Pakistan in December 2013.  In February 2014 he was arrested in Hong Kong.  

6.  The applicant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision. 

7.  The applicant gave evidence before the TCAB, which found that his evidence was inconsistent and contradictory e.g. as to whether he was involved in the 1^st incident [47].  The TCAB also found that his allegation that he was a target was speculation.  the applicant’s evidence was not credible and it did not see any real chance that he would be harmed, or otherwise ill-treated, if he is refouled [50].  His claim under the grounds of torture risk, BOR3 risk, persecution risk, and BOR2 risk were rejected by the TCAB [63-66].    

Application for leave to start judicial review

8.  On 8 March 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the TCAB’s Decision.  However, he failed to appear at the hearing.  No explanation was provided.  The grounds put forward by the applicant were summarized by the Judge in [11] of the JR Decision:

“(1) that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2) that their decisions were not fair or reasonable as required by the Wednesbury test;

(3) that they failed to take into consideration that the right to life must be protected from extra-judicial killings that he may face if deported to Pakistan; and

(4) that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.”

The JR Decision

9.  As mentioned earlier, the Judge refused leave for reasons set out in [12] - [17] of the Form CALL-1 ([2019] HKCFI 516):

“12.  These are however just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or how would extra-judicial killings be relevant to his claim, or how did the adjudicator fail to give him sufficient time or opportunity to produce his evidence for his claim or his appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and that even now in his application before me he did not produce any further evidence which he claimed to have been unable to do before the Board, nor did he do so at the oral hearing of his application which he failed to attend without any explanation.  In the premises I do not find any basis or merits in any of his grounds or that they are reasonably arguable for his intended challenge.

13.  As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.

14.  In the present case the applicant declined to give further evidence to substantiate or clarify his claim before the Board, which then proceeded to evaluate his claim based on the materials available to it, and for the detailed analysis and reasoning set out in paragraphs 40 – 50 of its decision it was entitled to make those adverse findings as it did against him in rejecting his non-refoulement claim for protection, and in the absence of any legal error or procedural unfairness in that decision being identified by the applicant either in his proposed grounds or at the hearing before me, I do not see any prospect of success in his intended application.

15.  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 subsequently 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.

17.  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.”

Legal Principles

10.  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.

Discussion

11.  As for (1), the delay between the JR Decision and the summons for extension of time to appeal was more than 2 months which cannot be regarded as insignificant. 

12.  As for (2), the reasons for the delay, the applicant said in his summons filed in the Court of Appeal that “I was late to submit the Appeal because I could not receive the document.  And I knew the case because my case officer told me that my case is finished.  I need to find people to help because I do not understand the system and cannot write English”.  There was no explanation for why he did not receive the document (presumably meaning the JR Decision), nor did he say when his case officer told him his case was finished.  However in the affirmation filed in the Court of Appeal, he said he had changed his address so he did not receive any letters from the court.  The court records show that the JR Decision was sent to him on 24 May 2019 and he had not filed any Change of Address before that was done.  Therefore if he had really failed to receive the JR Decision, it was because he had himself failed to ensure that the court has an updated address.

13.  However, the most important consideration is (3) the prospect of success of the intended appeal.  As the Judge noted in [12] of the JR Decision, the applicant had only stated broad and vague assertions in his Form 86 without any elaboration or presented the court with any particulars or specifics.  It is well-established that the application for leave to start judicial review proceedings is not a re-hearing by the judge of the TCAB proceedings, and the function of this court is to consider any alleged errors on the part of the judge.  We do not see any in this case.    

14.  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 10 January 2020.

15.  Since the present application is totally without merit, we further make an order under Order 59 r. 2A(8) RHC that the applicant may not request our determination to be reconsidered at an oral hearing.