RE KHAWAR ABBAS

CAMP 531/2021

[2022] HKCA 361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 531 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1045 OF 2018)

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JUDGMENT

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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 21 May 2021[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation, and also lodged a written submission 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”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Pakistan aged 46. He first arrived in Hong Kong on 28 April 1997 using a false identity. He was arrested on 20 March 2007 and investigation revealed that over the years he had travelled in and out of Hong Kong using the false identity. He was convicted and sentenced to 16 months’ imprisonment for using a false passport and making false representation to immigration officers.

6.  On 16 October 2007, he made a torture claim[2] which was rejected by the Director on 29 November 2013. On 3 December 2013, he raised a non-refoulement claim based on his fear of being harmed or killed by a person named Maqbool arising out of a land dispute. He claimed that Maqbool had strong connections with the Pakistan Muslim League (Noon) and the Pakistan People’s Party as well the police. The details of the applicant’s claim were set out in the Director’s decision at [8]. We will not repeat them.

7.  By his decision dated 10 February 2017, the Director rejected the applicant’s claim having regard to the BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds. There was no assessment under the torture risk ground in view of the previous rejection of his torture claim.

8.  The applicant appealed the Director’s decision to the Board. A hearing was held on 6 April 2018, during which the applicant gave evidence and answered questions from the Board. By its decision dated 30 May 2018, the Board dismissed the appeal. The Board found his evidence fraught with serious discrepancies and incredible, and attached no credence to it. The Board was not satisfied that the applicant faces a genuine and substantial risk of being subjected to harm or ill treatment by Maqbool, or he has a well-founded fear of persecution, or he faces a real risk of being deprived of his right to life. The Board concluded that the applicant failed to establish his entitlement to non-refoulement protection under any of the applicable grounds.

9.  On 8 June 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 only stated in the affirmation that he could not go back to his country because it was not safe to do so.

10.  The Judge heard the application at an oral hearing. He refused to give leave to apply for judicial review for the reasons set out in [11] to [14] of the Form CALL-1 dated 21 May 2021 as follows:

“11. 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 50 – 68 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 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 any reasonably arguable basis to challenge the finding of the Board.

12. 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 if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.

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.”

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 decision within 14 days after it was made.

12.  By a summons filed on 8 June 2021, the applicant applied for an extension of time to appeal the Judge’s decision. The applicant was absent at the hearing of the application on 27 October 2021. The Judge proceeded to deal with the application on the papers, and by his decision handed down on 10 November 2021[6] refused the application.

13.  On 23 November 2021, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.

14.  In considering whether to extend time for appealing against the refusal of 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.

15.  The applicant was four days late when he made the application for extension of time on 8 June 2021. He explained that it was because he received the order late. We do not find the explanation entirely satisfactory as he did not elaborate on the circumstances leading to the late receipt of the court order. Nevertheless, it was a short delay and the most important consideration is the merits of the applicant’s intended appeal, to which we now turn.

16.  In assessing the merits of the intended appeal, we 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].

17.  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.

18.  The applicant did not provide any specific ground in support of his intended appeal in either the summons or the affirmation. He only stated in the affirmation that the Judge’s decision was unfair.

19.  The applicant’s written submission put forward a wide range of criticisms against the Judge’s decision, which included:

(1) Failure to apply the principles of irrationality and procedural unfairness;

(2) Failure to consider sufficiently that high standards of fairness are required in determining a torture claim, and that his decision has the effect of finally disposing of the applicant’s claim, rendering him liable to be removed; and

(3) Failure to properly consider and analyse the applicant’s evidence and his claim.

20.  The written submission also complained that the Board had relied on news which is not officially recognised or is hearsay, and failed to consider whether there was a pattern of gross and mass violation of human rights in Pakistan as well as failed to analyse and assess whether state protection is available. It further stated that it was unsafe for the applicant to return to Pakistan and that he had a genuine fear of being harmed or tortured by his enemy.

21.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1) The criticisms made of the Judge’s decision were general assertions with no particulars. They do not afford proper basis for the Court of Appeal to interfere with the Judge’s decision.

(2) The applicant had not put forward any specific grounds for his intended judicial review. The complaints he now made of the Board’s decision are new arguments that had not been argued in the application before the Judge. No basis has been shown as to why he should be allowed to raise these new grounds in the intended appeal.

(3) In any event, assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker. The Board had, for the reasons it gave, rejected the applicant’s evidence and claim as incredible and held that the requirements for granting non-refoulement protection were not made out. The applicant has not pointed to any specific error in the Board’s finding and assessment. His assertion that he would be subject to harm upon return to Pakistan has no proper evidential basis.

22.  We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.

23.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal of the application for 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. Accordingly, we dismiss the applicant’s summons filed on 23 November 2021.