RE AKIF MUHAMMAD

CAMP 237/2020

[2021] HKCA 994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 237 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 595 OF 2018)

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J U D G M E N T

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The Court:

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 17 August 2020 refusing leave to 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 6 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 7 March 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong in April 2009 and was arrested on 15 April 2009.  He lodged a torture claim on 18 April 2009 which was refused on 28 November 2013.  On 4 December 2013, he lodged a non-refoulement claim.

3.  The applicant’s claim was based on threats from members of an opposing political party and his cousins.  The details of the applicant’s claim have been summarised by the judge at [1] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 7 March 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2] and the persecution risk[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 24 January and 21 February 2018, the Board dismissed the appeal on 6 April 2018 (“the Board’s Decision”).  At [38] of the Board’s Decision, the Board found that the applicant’s case was not credible.

The judge’s decision

6.  The applicant filed a Form 86 on 10 April 2018 which contained no ground for seeking relief.

7.  In his affirmation in support of the leave application filed on 10 April 2018, the applicant deposed that:

“The decision of the director of immigration was unreasonable in that, he failed to consider all the matters raised in my claim and or give adequate reason for his decision.”

8.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to grant leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [16] of the CALL-1 Form:

“11. On 10 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that the decision was unreasonable in failing to consider all the matters raised in his claim or give adequate reason but without providing any particulars or elaboration how it was so, nor did he request any oral hearing for his application. As such and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant with adequate particulars or elaborations, I do not find any reasonably arguable basis for his intended challenge.

12. 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.

13. 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 34 – 48 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law 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.

14. Furthermore, the fact that it has been established by both 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 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.

15. 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.

16. 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.”

Application for extension of time to appeal and grounds for appeal

10.  By a summons dated 11 September 2020, the applicant sought leave to appeal out of time before the judge.  The applicant was not in fact out of time for bringing the intended appeal and he did not need to apply for extension of time from the court below. For under section 31(1)  of the High Court Ordinance (Cap 4), time for service of the appeal does not run in the summer vacation unless the court otherwise directs.  The month of August is the summer vacation of the court and time does not run in August ([8.1] – [8.4] re: Rana Jaswant [2019] HKCA 102; [2019] 2 HKLRD 347). The time to appeal against the decision of 17 August 2020 therefore did not expire until 14 September 2020 which is 14 days after the end of the August vacation.

11.  Had his application been heard before 14 September 2020, the judge could have simply made no order on the application.  This, however, was not the case.  His application was heard on 14 October 2020 by which time to serve the notice of appeal had expired and inevitably the judge had to consider the application. His application was dismissed by the judge on 1 December 2020.

12.  By a summons filed on 11 December 2020, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that:

“On 17 August 2020 [the judge] refused my leave application. But he failed to show any good cause to cancel my claim. On the other hand I am still in danger in my country. It is impossible for me to return.”

13.  In his affirmation of the same day filed in support of the application, the applicant deposed that:

“[the judge] refused my application, I want to challenge his decision.”

14.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 11 February 2021, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 rule 14A of the Rules of the High Court.

16.  We have considered the reasons for delay given by the applicant in the application for extension of time before the judge ([4] of the decision dated 1 December 2020)  and the documents filed for the application before us.  The explanations given by the applicant were vague and there was no evidence to support them.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal. 

17.  We nonetheless go on to consider the merits of the intended appeal.

18.  The applicant claimed that the judge failed to give good reasons for dismissing his application for leave for judicial review.  The applicant neither gave explanation for this ground nor identified the issues that ought to have been addressed by the judge. 

19.  We note that the applicant did not give any ground for judicial review in his application and so there was no issue for the judge to deal with.  The judge had nevertheless considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny and did not find any public law error in them ([15] of the CALL-1 Form).  We are not satisfied that this ground has any merit.

20.  As for the bare assertion by the applicant that it is unsafe for him to return, this is not itself a valid ground for judicial review or ground of appeal.  In any event, we note that the Board dismissed his claim for protection on the ground that his claim was not credible and that he did not face any risk upon return.  The applicant failed to substantiate any public law error to challenge the finding by the Board in this respect.

21.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 11 December 2020 is dismissed accordingly.

22.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.