RE IHSAN UL HAQ

CAMP 351/2021

[2022] HKCA 343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 351 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1563 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.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 15 January 2020 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”) ([2020] HKCFI 192). An earlier application for extension of time to appeal was refused by the Deputy Judge on 9 August 2021 (“the EOT Decision”) ([2021] HKCFI 2123).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 27 July 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 November 2017 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the papers, 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 surrendered to the Immigration Department on 6 May 2015 after entering Hong Kong illegally.  He lodged a non-refoulement claim on 16 September 2015 on the basis that, if refouled, he would be harmed or killed by the members of the Pakistan Muslim League and the Pakistani Police.  Details of the applicant’s claim were summarised by the Deputy Judge at [2] ‑ [4] of the Leave Decision.

5.  By a Notice of Decision dated 22 November 2017, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3], and persecution risk^[4].

6.  The applicant then appealed against the Director’s Decision to the Board.  He attended and gave evidence at an oral hearing before the Board with the assistance of an interpreter on 21 March 2018.  The Board dismissed his appeal on 27 July 2018 and confirmed the Director’s Decision.  The Board found that there were significant inconsistencies and omissions in the applicant’s evidence.  The Board did not find him to be a reliable or credible witness and did not accept that his evidence as credible.  Having assessed the evidence, the Board considered that the applicant failed to substantiate his case on the applicable grounds.  Accordingly, the Board dismissed his appeal.

The Leave Decision

7.  On 7 August 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision. However, no ground of review was provided by the applicant in his Form 86.  In his supporting affirmation, he only claimed that he did not want to go back to Pakistan as his life was not safe and his enemies killed his wife in Pakistan.  The applicant attended an oral hearing before the Deputy Judge on 19 July 2019 and an Urdu interpreter was present to provide language assistance.

8.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review for the following reasons:

“12. It is quite clear that the Board rejected all his facts in support of his claim. His application therefore has no factual basis.

13. He has raised no valid ground to challenge the Board’s Decision. There is no proof that his mother-in-law was killed by his enemies.

14. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board has committed any error in reaching its decision.

15. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

16. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.”

The EOT Decision

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 12 March 2020, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, he was over one month late with his intended appeal.  In both the EOT Summons and the supporting affirmation, he did not provide any ground or reason for his delay and only stated that he requested the Court to review his case as it was a “matter of a human’s life”.

11.  By the EOT Decision, having considered his application and being of the view that the applicant was unable to demonstrate any reasonable prospect of success in his intended appeal, the Deputy Judge refused his application for extension of time to appeal.

The Present Application

12.  By a summons and supporting affirmation both filed on 23 August 2021, the applicant reapplied for extension of time to appeal.  In the summons, he claimed that he did not receive the “letter of judgment” and he failed to appeal for that reason.  No ground of appeal was given in his summons or supporting affirmation.

13.  Pursuant to the directions given by the Registrar of Civil Appeals on 23 August 2021, the applicant lodged his written submissions on 6 September 2021.  In his submissions, he only repeated the alleged factual basis of his non-refoulement claim and did not provide any ground of appeal or identify any error in the Leave Decision.

Discussion

14.  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].

15.  We consider that the applicant’s delay over one month was substantial and that the applicant has failed to provide any cogent explanation for his 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].

16.  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 decision of the Deputy Judge 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].

17.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper ground of appeal or point to any error committed by the Deputy Judge.  As such, no viable ground of appeal was given by the applicant.  The intended appeal must fail on this basis alone.

18.  In any event, the applicant’s general and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal.  As repeatedly emphasised by this Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation 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].

19.  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 dated 23 August 2021 dismissed.