RE IMRAN HUSSAIN

CAMP 323/2021

[2022] HKCA 1127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 323 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 946 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Yuen JA (giving the Judgment of the Court):

1.  On 21 September 2020, DHCJ Bruno Chan (“the Judge”)  refused to give the applicant leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 4 December 2020 for extension of time to appeal.  That summons was dismissed by the Judge on 15 June 2021.

3.  On 6 August 2021, the applicant filed his summons in CAMP 323/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 6 August 2021, the applicant lodged his written submissions in support of the Summons on 19 August 2021.

5.  Under Order 59 r. 14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Pakistan who entered Hong Kong illegally in or about mid-August 2015 and was arrested by the Immigration Department on 5 November 2015 and was detained in Ma Tau Kok Detention Centre.  He raised a non-refoulement claim on 2 December 2015 alleging if refouled, he would be harmed or even killed by his cousins over a land dispute in his home district.  The factual background of this case was succinctly summarised by the Judge at [2] – [3] of the JR Decision ([2020] HKCFI 2341).

7.  By a Notice of Decision dated 20 January 2017, the Director of Immigration (“the Director”)  decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 12 March 2018.  By its decision dated 18 May 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out in [40] to [63], the Board did not find the applicant’s evidence credible and reliable as there were inconsistencies and contradictions in his account of a land dispute with his uncle and cousins.  The Board also found it illogical and incredible that when he claimed to be illiterate, he could tell the documents forced upon him to sign were land transfer documents and he forgot the name of his friend who had helped him a great deal after he escaped from his home village to Karachi. Further, relevant Country of origin information (“COI”)  shows that the Pakistani government has enacted and enforced new legislation to combat corruption including that in the police force and the applicant may seek police assistance if needed upon his return to Pakistan.  In any event, he may safely relocate to other big cities to avoid any risk.  For the aforesaid reasons, his non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 28 May 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and Board’s decisions.  In his supporting affirmation, he put forward the following grounds for his intended challenge:

(1)  There was a lack of legal representation for his appeal before the Board.

(2)  There was a lack of language assistance in that he was not provided with any translation of documents for his appeal before the Board.

(3)  It was unreasonable for the Board to reject his credibility simply because he was unable to remember the date when he was assaulted by his cousins or because he could identify the transfer documents notwithstanding his limited education.

The JR Decision

10.  The applicant attended an oral hearing on 13 August 2020.   After due consideration of the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [9] - [15] of the JR Decision:

“9.   For his complaint under Ground (1)  of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

10.   The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

11.   As for his complaint under Ground (2)  of not being provided with a translation of his documents for his appeal before the Board, it is clear that he should have been familiar with most of the documents when he was still represented by DLS, while his NCF was completed on his instructions to his legal representation, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any issue over translation or requested for the same.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

12.   Regarding his Ground (3)  as to the Board’s finding on his credibility, clearly the Board did not just rely on those matters for its determination of that issue as evidenced by its thorough and detained analysis and reasoning set out in paragraphs 40 – 42 of its decision and with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing.  As such I do not find any reasonably arguable basis to challenge or interfere with this finding of the Board.

13.   As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

14.   Furthermore, the fact is that it has been established by both the Director and the Board in their decisions 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.

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.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant was late in filing a notice of appeal against the JR Decision.  He filed a summons in the Court of First Instance on 4 December 2020 for extension of time to appeal. That was dismissed by the Judge on 15 June 2021.  Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appealing, the Court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of success of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).

13.  As for (1), the applicant was late by 2 months between the deadline for filing an appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.

14.  As for (2), the reasons for the delay, the applicant explained at the hearing that he never received the decision in the mail because he changed his address some 9 months ago, and that he was only informed of it when someone from the Registry recently telephoned him about the JR Decision.  By then he was already out of time with his appeal.  The Judge did not find his explanation credible and when it was pointed out to the applicant that the Registry would not call him on the telephone about the court’s decision, he then conceded that he did in fact receive the decision in the mail and that his delay was caused by his having to find someone to help him with his appeal.

15.  Further, the court record shows that the JR Decision was sent on the same day to his last reported address without being returned through the post.  The Judge accepted that an applicant in his situation and being unrepresented would normally require assistance with his application, but in the absence of any further details or documentary evidence to corroborate his bare assertions, the Judge was not satisfied that the applicant had provided a good reason for his significant delay.  We agree with the Judge’s decision.

16.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant did not put forward any proper or valid proposed grounds of appeal, or any particulars of any error in the JR Decision in his summons and supporting affirmations.  At the hearing, he merely repeated his claim that his life would be in danger in his home country and that he just wants to remain in Hong Kong.  As such the Judge did not find any prospect of success in his intended appeal.

17.  In his summons for his application for extension of time before this Court, he failed to provide any proposed grounds of appeal, or any particulars of any error in the JR Decision.  In his supporting affirmation, he merely stated that he would like to request this Court to save his life as his life is in danger in his home country and his case is set out in the Judge’s decision.

18.  In the applicant’s written submissions, he said his life will be in danger if refouled and he does not have any faith in the Pakistani authorities.  He urged the Director and the Court to save his life.

19.  It is clear from the Board’s decision that the applicant’s claim was rejected for lack of credibility and in any event, due to the absence of any official involvement, the availability of state/police protection and internal relocation, and therefore it did not find any real risk of harm upon his return to Pakistan.  It is perfectly open for the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds.  We do not see any in this case.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

20.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 6 August 2021.