RE HUSSAIN IMTIAZ

CAMP 440/2022

[2023] HKCA 19

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 440 OF 2022

(ON AN INTENDED APPEAL FROM NO. HCAL 182 OF 2021)

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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):

1.  This is an application for extension of time to appeal against a decision of Deputy High Court Judge K W Lung (“Judge”) dated 23 June 2022 refusing to grant leave to the applicant for him to apply for judicial review.[1] The applicant wished to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”) dated 21 January 2021 by which the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 30 April 2018 to reject the applicant’s non-refoulement claim.

2.  The applicant is a national of Pakistan born in 1985.  He entered Hong Kong illegally on 25 August 2015 and surrendered to the Immigration Department on 1 September 2015.  On 8 April 2016, a removal order was made against him.  He made a claim for non-refoulement protection by written representation on 29 April 2016.  His claim was based on the fear that, if he returned to Pakistan, he would be harmed or killed by members of a gang called Antu gang who used to be led by a person called Antizar.  The applicant claimed that he had worked as a police officer in Pakistan and during a police operation in 2014 he shot dead Antizar.

3.  The applicant’s claim was assessed by the Director with respect to BOR 3 risk,^[2] persecution risk,^[3] torture risk,^[4] and BOR 2 risk[5] and was rejected, as notified to the applicant by a notice of decision dated 30 April 2018.

4.  The applicant appealed to the Board.  At the hearing on 3 June 2020, the applicant gave evidence and answered questions from the Board.  At the end the Board appears to have accepted that the applicant was an ex-policeman in Pakistan, but did not accept that he was involved in any operations concerning Antizar and did not accept that he was being pursued by the gang.  The Board further noted that, even if one accepted that the applicant was being pursued by the gang, his evidence of the low intensity and frequency of the harm inflicted in the past did not point to any relevant risk of serious harm upon refoulement.  The Board also found that state protection would be available for the applicant who worked as a policeman.  In conclusion, the Board did not accept that the applicant was in danger of being subjected to any genuine or substantial fear of ill-treatment if returned to Pakistan.  The Board also opined that it would be open and safe for the applicant to relocate to other large cities in Pakistan such as Karachi.  For these reasons the Board dismissed the applicant’s appeal in its decision issued on 21 January 2021.

5.  By a Form 86 dated 19 February 2021, the applicant applied to the Court of First Instance for leave to apply for judicial review of the Board’s decision.  He did not set out any grounds for judicial review either in the Form 86 or his supporting affirmation.

6.  On 11 May 2022, the Judge held a hearing of the application which was attended by the applicant. In a written decision issued subsequently on 23 June 2022, the Judge refused leave for judicial review, for the following reasons:

“ 15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he had married here and applied for dependent’s visa, pending the result from the Director. He considered that it is still dangerous for him to return to his country.

17. 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.’

18. The applicant has not given any valid reason to challenge the Board’s Decision.

19. 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.

20. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

7.  The applicant did not appeal within the 14-day period for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), but on 9 August 2022, filed a summons seeking extension of time to appeal against the Judge’s decision.  In his affirmation the applicant stated he was unrepresented and had no means to instruct a private lawyer and asked the court to exercise its discretion to allow him to appeal out of time.

8.  In his decision handed down on 20 September 2022, the Judge refused to extend time as there was no prospect of success in the intended appeal.

9.  By summons dated 25 October 2022 filed in this court, the applicant has renewed his application for extension of time to appeal against the refusal of leave to apply for judicial review.  He stated on his summons that he did not get the letter from the court on time, but did not set out any proposed grounds of appeal.  In his written submissions lodged on 7 November 2022, the applicant stated that there was “life threat” in his country, and that his problem was serious and his enemies were very powerful.

10.  We consider it appropriate to deal with this application on the papers without a hearing pursuant to Order 59 rule 14A of the Rules of the High Court.

11.  In considering whether to extend time, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice that would be occasioned to the respondent if an extension of time were granted.

12.  The applicant claimed that he did not receive the court’s letter in time, but this reason was not mentioned in his application for extension of time in the Court of First Instance.  He confirmed his address at the hearing before the Judge and the court records show that the Judge’s decision was posted to him on the day it was issued and had never been returned undelivered.  In these circumstances we do not accept that there was any valid explanation for the applicant’s delay in taking steps to appeal. 

13.  In any event, we have examined the merits of the intended appeal.  In assessing the merits, 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, 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’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 the appeal were a fresh application for judicial review.

14.  In the present case, the Board rejected the core allegations of the applicant due to issues of credibility.  The Board also held that even on the applicant’s evidence of past incidents, there was no risk of the requisite level of harm upon refoulement.  The Board also found that state protection would be available and that internal relocation would be a viable and reasonable option.  These are findings open to the Board on the evidence before it for the reasons it gave.  The court has no basis to interfere with such factual findings unless there are public law errors that vitiate them.  The applicant has not been able to advance any such error; nor can we see any from the materials available.

15.  The applicant has also failed to point to any error in the decision of the Judge.  There is no prospect of success in the intended appeal to this Court.  In the circumstances, an extension of time to appeal would be futile and should be refused. Accordingly, the applicant’s summons is dismissed.

[1]  [2022] HKCFI 1701.

[2]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).