RE SHABBIR FALAK

CAMP 79/2023, [2024] HKCA 635

On appeal from [2022] HKCFI 2433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 79 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 183/2022)

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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 11 August 2022 refusing to extend time for 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 18 June 2021 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 15 June 2020 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 5 November 2019, and surrendered to the Immigration Department on 7 November 2019.  Thereafter, he lodged a non‑refoulement claim by way of written significations dated 7 November 2019, 19 November 2019 and 6 January 2020.

3.  The applicant’s claim was based on a fear of being harmed or killed by members/supporters of the Pakistan Muslim League (Q) (“PMLQ”) for refusing to join their political party.  The details of the applicant’s claim have been summarised by the Judge at [1] to [6] of his decision (“the CALL‑1 Form”)[1].

4.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After consideration of the applicant’s case on the papers, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board found that although the applicant’s story of threats and assaults suffered at the hands of PMLQ’s supporters was credible, the threat of harm then posed by them is now spent due to recent political developments, and that in any event, any risk of harm may be reduced by the applicant’s internal relocation to places such as Karachi and Lahore within Pakistan.

The Judge’s decision

6.  The applicant filed a Form 86 out of time, on 12 April 2022, seeking to judicially review the Board’s Decision.  In the Form 86, the applicant set out his grounds for review, which were summarised by the Judge and set out by him at [11] of the CALL-1 Form as follows:

“(1) That the Director and the Board reached their decisions wrongly in assessing his non-refoulement claim in that their decisions were not fair or reasonable as required by the Wednesbury test that his right to life must be protected by criminal law from the extra-judicial killings that he may face if deported back to his home country;

(2) That the Director failed to give proper importance or weight to the presence of state acquiescence in his case that led to an unfair outcome of rejecting his non-refoulement claim that he was tortured at the behest of the state law officials and politicians that the state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) That the Adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account in assessing his claim;

(4) That the Adjudicator was procedurally improper and unfair when assessing whether to accept the explanations provided by the Applicant and unreasonably required him to respond to questions that he was not in position to respond;

(5) That the Adjudicator failed to take account the nexus of political parties and official corruption which exist in his home country thus making persecution effectively persecution by the State before reaching its decision which was a clear case of unfair attitude enough to render it void;

(6) That the Director failed to attain high standard of fairness required by the Wednesbury test in the decision when he failed to take into account the argument that corruption and incompetency in the administration in the Applicant’s home country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions that the decision should be considered unreasonable in the scope of public law; and

(7)  That Adjudicator made a ruling to dismiss his appeal without an oral hearing which was against his right to have one for his appeal before the Board.”

7.  In his supporting affirmation, the applicant simply exhibited a copy of the Board’s Decision.

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to extend time for the applicant to apply for leave to apply for judicial review.  The Judge gave the following reasons in refusing to extend time at [12] to [19] of the CALL‑1 Form:

“12.  By then the Applicant was seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.  As the last day of the three-month period for him to file his Form 86 fell on 18 September 2021, the Applicant was therefore some 7 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of 7 months must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his then reported address without being returned through undelivered post, and as he also failed to attend the hearing of his application without any explanation, I do not see any good reason for his serious delay.

15.  As for the merits, if any, of his intended appeal, those grounds or complaints of the Applicant as listed above are however all 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 would apply to his case or how the Board or the Adjudicator had erred in the decision, or what relevancy were state acquiescence or extra-judicial killings to his claim, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI or to apply high standards of fairness in the assessment of his claim, while it is well established by the Court of Appeal that there is no absolute right to an oral hearing before the Board as long as high standards of fairness was applied in the proper exercise of its discretion not to take any issue of credibility of the Applicant’s claim as to threats and assaults suffered by him at the hands of those local PML(Q) supporters when it clearly and rightly found that both state protection and internal relocation were available to the Applicant to negate such risk that I do not find any of these bare assertions of the Applicant reasonably arguable for his intended challenge or any merits in his intended application.

16.  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.

17.  In the Applicant’s case, the fact is that it has also been correctly established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.  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.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his such serious delay, I refuse to extend time and accordingly dismiss his leave application.”

The present application for extension of time to appeal

9.  The applicant’s last known address at the time of the Judge’s decision was at the Castle Peak Bay Immigration Centre (“the Centre”).

10.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the Centre on 11 August 2022, but was returned undelivered and marked ‘no such person’.

11.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 11 August 2022.

12.  The applicant thereafter took out a summons in the Court of First Instance on 26 September 2022 seeking extension of time to appeal, in which his address was stated to be at Bowring Street, Jordan (“the Jordan Address”).  In the summons and in his supporting affirmation filed on the same date, he merely stated that he “got the Judgment late in [his] mail”.

13.  The applicant’s application to appeal out of time was dismissed by the Judge on 21 December 2022[6].

14.  By a summons filed on 20 February 2023, the applicant renewed his application for extension of time to appeal before this court. In the summons and his supporting affirmation, the applicant asked this court to extend time for his appeal as he “did not get the High Court Letter on time”, and that he disagreed with the Judge’s decision.

15.  In breach of the directions made by the Registrar of Civil Appeals, the applicant lodged his written submissions late.  Given the short delay of 1 day, this court is prepared to consider those submissions, which contain nothing more than a repetition of the procedural history of his claim and the alleged dangers he may face should he be refouled.

Discussion

16.  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.

17.  As noted above, the Judge’s decision was sent to the last known address of the applicant, i.e. at the Centre, but was returned undelivered.  However, it was incumbent upon the applicant to notify the court of any change of address as soon as possible, including that to the Jordan Address (and the date(s) of his detention at, and release from, the Centre), and any consequences of having failed to do so lie with him.  In any event, the applicant has proffered no reason or explanation for the delay in bringing the intended appeal, nor has he explained when he had come to learn of the Judge’s decision.

18.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.  We have nonetheless proceeded to consider the merits of the intended appeal.

19.  So far as the merits are concerned, the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

20.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

21.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

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.  The summons filed on 20 February 2023 is accordingly dismissed.