RE KALEEM MUHAMMAD

CAMP 168/2023, [2024] HKCA 322

On Appeal From [2022] HKCFI 3201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 168 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 628 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  On 21 April 2023, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 21 October 2022 ([2022] HKCFI 3201)  (“the Leave Decision”)  refusing leave to apply for judicial review.  On 17 April 2023, the Judge refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2023] HKCFI 969)  (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 5 December 2018, dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 21 March 2018 rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Pakistan.  He last entered Hong Kong illegally on 13 April 2015 and was arrested by police on the same day.  On 16 April 2015, he raised a non-refoulement claim on the basis that if he refouled he would be harmed or killed by the family of a neighbour in revenge over the neighbour’s death from a fight with other villagers including the husband of a cousin of the applicant.  Details of the applicant’s claim have been summarised by the Judge at [1] - [4] of the Leave Decision.

5.  By a Notice of Decision dated 21 March 2018 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decision to the Board.  On 5 December 2018, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at [8] of the Leave Decision:

“8.  In its decision the Board found the Applicant’s evidence inconsistent exaggerated and unconvincing that it doubted the credibility of his claimed fear of harm for leaving his home country for Hong Kong that it rejected his claim of fear of harm from his neighbour’s family upon his return to Pakistan, nor is there any evidence or reason to doubt that he would not be entitled to state or police protection if needed or that his neighbour’s family would be able to locate him anywhere in Pakistan if he were to move to other part of the country that it concluded that his claim for non-refoulement protection failed on all applicable grounds.”

7.  On 5 March 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review was given in the Form 86.  In his supporting affirmation, he did not agree with the Board’s Decision and only stated that his life would still be in danger in his home country.

THE JUDGE’S DECISION

8.  On 21 October 2022, as the applicant did not request for an oral hearing, the Judge determined his application on paper and refused his application for leave to apply for judicial review.  His reasons were stated at [9] - [14] of the Leave Decision:

“9. On 5 March 2019, the Applicant filed his Form 86 for leave to apply for judicial review of the decision of the Director dated 21 March 2018, but given the fact that decision had clearly since been superseded by the Board’s decision of 5 December 2018 and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549, I shall therefore treat his application as one to challenge the Board’s decision, but in either case the Applicant has failed to put forth any proper ground for seeking relief in his Form or his supporting affirmation in which he just stated that he does not agree with the decision as his life is still in danger in his home country that he cannot return to Pakistan but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10. 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 in what is clearly a private case of vendetta without any official involvement even on the factual basis of the Applicant’s own case, I do not find any reasonably arguable basis for his intended challenge of such findings of the Board that state or police protection would be available to negate any such risk to the Applicant.

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 fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for his to relocate to other part of Pakistan, there is simply no justification to afford his with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13. 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.

14.  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.”

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14-day period.

10.  On 6 December 2022, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was over one month late with his intended appeal.

11.  On 17 April 2023, the Judge refused the applicant’s application.  The Judge considered that a delay of over a month as substantial and inordinate, for which the applicant did not provide any good or valid reason for his delay.  The Judge further held that in the absence of any error in the decision being clearly and properly identified by the applicant, there was no prospect of success in his intended appeal.

THIS APPLICATION

12.  By a summons and a supporting affirmation lodged on 21 April 2023 in the Court of Appeal, the applicant reapplied for extension of time against the Leave Decision.  In his summons, the applicant did not give any reason for his delay or any ground of review.  In his supporting affirmation, the applicant alleged that the Leave Decision might have been misplaced in the wrong mailbox and upon discovery he was already out of time for his appeal.  He then asserted that he was under high mental stress as he was detained in the Castle Peak Immigration Centre and that his lack of legal and language assistance deprived him of the opportunity to understand the judgments and to advance proper grounds of appeal.

13.  Pursuant to the directions of the Registrar of Civil Appeals dated 21 April 2023, the applicant lodged his written submissions on 5 May 2023.  In those submissions, the applicant repeated his complaints in relation to the lack of legal and language assistance which caused procedural unfairness in the Leave Decision.

DISCUSSION

14.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

15.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

16.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

17.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

18.  The applicant’s delay of over a month is substantial and inordinate.  As noted by the Judge, the court record shows that the decision was sent on the same day to the applicant’s last reported address without being returned through undelivered post.  As the applicant failed to provide any evidence to support his bare assertions, he failed to demonstrate any good reason for his delay.

19.  There is also no merit in the applicant’s complaint in relation to his lack of legal representation or language assistance. Insofar as this complaint relates to his appeal to the Board, he did not raise this ground in his application for leave to apply for judicial review, and should not be permitted to raise this new ground for the first time in the Court of Appeal.  See: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Insofar as this complaint relates to his application for leave to apply for judicial review or the present appeal, there is no legal basis for any contention that he was or is entitled to legal representation at either stage of the proceedings.  See: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas[2018] HKCA 15; Re Tariq Farhan[2018] HKCA 17; and Re Lopchan Subash[2018] HKCA 37.

20.  Furthermore, all the court documents filed and lodged by the applicant are written in English.  In the premises, it is clear that either the applicant is conversant with the English language or he has access to language assistance of his own if he finds it necessary.  There is therefore nothing in the complaint in relation to his lack of language assistance.

21.  In any event, his intended appeal is devoid of merit.  The applicant’s complaints are all directed against the Board’s Decision and are general allegations without particulars.  The applicant has therefore failed to identify any error or raise any viable ground of appeal against the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  As the applicant did not request for an oral hearing, and raised no ground for his intended challenge, it was open for the Judge to consider his application for leave to apply for judicial review on paper after considering the materials advanced by the applicant.  In any event, the applicant already had ample opportunities to present his case and situation before the Judge.  There is plainly no substance in his complaints.

22.  There is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

23.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 21 April 2023 is dismissed.