RE IQBAL ZAFAR

CAMP 250/2022, [2024] HKCA 601

On Appeal From [2022] HKCFI 541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 250 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2564 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  By a summons filed on 14 July 2022, the applicant reapplied to this court for extension of time to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 28 February 2022 refusing his application for leave to apply for judicial review ([2022] HKCFI 541)  (“the Leave Decision”).  By a subsequent decision dated 27 June 2022, the Deputy Judge also refused the applicant’s application for extension of time to appeal against the Leave Decision ([2022] HKCFI 1787)  (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 15 October 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 19 September 2017, by which the Director rejected his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Pakistan.  He claimed to enter Hong Kong illegally on 7 July 2012 and was arrested by the police on the same day.  On 9 July 2012, he raised a torture claim on the basis that if refouled, he would be harmed or killed by Faisal Zaman (“Zaman”), a member of a political party in Pakistan named the Pakistan People’s Party (“PPP”), because he and his family changed allegiance from PPP to another political group after a fight involving his family in 1992.  He claimed that he would be harmed or killed by Zaman also because he once worked as a guard in the Pakistan Atomic Energy and he refused to disclose to Zaman information about atomic energy in Pakistan upon Zaman’s request.  His torture claim was dismissed by the Director on 31 October 2012 and his petition in respect of his torture claim was rejected by the Board on 30 November 2012.  He subsequently sought non-refoulement petition by submitting a Supplementary Claim Form dated 5 August 2017.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [5] and [6] of the Leave Decision.

5.  As the Director’s decision of 31 October 2012 already covered the torture risk[1] ground and by the Director’s Decision dated 19 September 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds other than torture risk, namely, BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

6.  On 29 September 2017, the applicant appealed against the Director’s Decision to the Board.  On 19 July 2018, he attended an oral hearing before the Board and gave evidence.  By the Board’s Decision, the Board dismissed his appeal and confirmed the Director’s Decision.  The Board noted that the applicant’s claim in 2017 was effectively the same as that advanced in his torture claim in 2012, but with additional information that his two brothers were attacked by the alleged sub-ordinates of Zaman in around 2013.  The Board did not find any evidence of significant change of circumstances since the full determination of the applicant’s torture claim in 2012.

7.  Having assessed and considered the totality of the evidence, the Board did not accept the material aspects of the applicant’s claim to be true, given the inconsistencies and implausibility in his evidence which undermined his credibility.  The Board was not satisfied that the applicant would face a real chance of harm of any kind for any reason in Pakistan in the reasonably foreseeable future.  Accordingly, the Board considered that the applicant had failed to substantiate his claim on any of applicable grounds under his non-refoulement claim and dismissed his appeal.

The Leave Decision

8.  On 14 November 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Director’s Decision and the Board’s Decision.  In his supporting affirmation, he stated the Director failed to give sufficient weight to all evidence and the Board agreed with the Director despite all errors in the Director’s Decision.

9.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [14] - [20] of the Leave Decision:

“14. 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 applicants’ 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).

15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16. 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.’

17. The applicant does not have any valid ground to challenge the Board’s Decision. The grounds in support of his application are his opinions or comments without any evidence in support. The Board simply did not believe his evidence on the facts of his case. In other words, he has no factual basis in support of his claim.

18. 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.

19. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

20.  I therefore refuse to grant leave to the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The EOT Decision

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  Due to the closure of the High Court Registry during the General Adjournment Period (arising from the COVID-19 Pandemic)  from 7 March 2022 up to 11 April 2022, the period was automatically extended to 12 April 2022.  No notice of appeal was filed by the applicant by 12 April 2022.

11.  On 30 May 2022, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over one month late with his intended appeal[5].  In his summons and supporting affirmation, he contended that he was late in making his application given his lack of knowledge and insufficient resources.

12.  By the EOT Decision, the Deputy Judge considered that the applicant was unable to show any realistic prospect of success in his intended appeal.  Accordingly, the Deputy Judge dismissed his application for extension of time to appeal.

The Present Application

13.  By a summons and supporting affirmation both filed on 14 July 2022, the applicant reapplied for extension of time to appeal against the Leave Decision.  In both his summons and supporting affirmation, he merely repeated that his delay was due to his lack of knowledge and insufficient resources.

14.  Pursuant to the directions made by the Registrar of Civil Appeals on 14 July 2022, the applicant lodged his written submissions on 20 July 2022.  In those submissions, he claimed that his life would become worse if he returned to his home country and that he was not satisfied with all the decisions given on his case.  He also claimed the Board ignored many things related to his case as the actual situation in his home country was different from what the Board thought.  He further alleged that the police and law-making authorities used their political influence and he did not have the strength to fight them.  He claimed that it would be very difficult to get justice in that corrupt environment and that people like him would be living under threat due to strong enemies.  It is noted that these are all general and bare assertions unsupported by specific particulars or evidence in support.

Discussion

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  We consider that the applicant’s delay of over one month is substantial.  Ignorance of the law on the part of the applicant is not a reasonable excuse for his substantial delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

17.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  The applicant’s appeal is clearly without merit.  Nowhere in his summons, supporting affirmation or written submissions did he identify any error in the Leave Decision with specific particulars.  Accordingly, there is no viable ground of appeal and his intended appeal must fail on this alone.

19.  In any event, his general and bare assertions of his fear if refouled to his home country do not constitute valid grounds of appeal.  As repeatedly emphasised by the court, assessment of evidence and risk of harm are primarily within the province of the Board (and the Director)  as primary decision makers.  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: 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].

20.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 14 July 2022 is dismissed.