RE IQBAL ANSAR

CAMP 510/2021

[2022] HKCA 622

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 510 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1005 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

1)  Renewed application for extension of time to appeal

1.  On 4 June 2018, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decisions of the Director of Immigration (the ‘Director’)  dated 6 March 2015 and 11 July 2017 rejecting his non-refoulement claim, and against the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 17 May 2018 dismissing his appeal against the Directors’ decisions.  The application was brought within time.

2.  By his decision dated 9 April 2021 ([2021] HKCFI 941)  (the ‘Leave Decision’), Deputy High Court Judge Bruno Chan (the ‘Judge’)  refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, Cap. 4A, the applicant had 14 days to appeal against the decision.  Being out of time for more than six weeks, the applicant took out an application on 7 June 2021 before the Judge requesting an extension of time to appeal.  The Judge on 19 October 2021 rejected the applicant’s application ([2021] HKCFI 3038)  (the ‘EOT Decision’).

4.  Under Order 59, rule 14(3)  of the Rules of the High Court, Cap. 4A, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal (i.e. by 26 October 2021).  On 11 November 2021, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal.

5.  Under Order 59, rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Factual background

6.   Briefly stated, the applicant is a Pakistan national.  He entered Hong Kong illegally on 9 June 2019 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he raised a torture claim, which was later taken as a non-refoulement claim, on the basis that if he returned to Pakistan he would be harmed or killed by the local supporters of rival political party Pakistan Muslim League (Q)  (‘PML(Q)’).

III.  The Director’s Decision

7.  By a decision on 6 March 2015, the Director decided against the applicant’s non-refoulement claim.  The decision covered risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (‘Torture Risk’), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (‘HKBOR’)  (‘BOR 3 Risk’), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (‘Persecution Risk).

8.  The Director found that the level of risk of harm from those local PML(Q)  supporters upon his return to Pakistan was low due to the low intensity and frequency of past ill-treatment from them, as well as the fact that the applicant was just a Pakistan Peoples Party (‘PPP’)  supporter without any post in that party.  In the absence of official involvement, state protection would be available to the applicant.  Also, based on reliable and objective Country of Original Information (‘COI’), the Director found that it was viable for the applicant to internally relocate to other area of Pakistan where it would be difficult if not impossible for those local PML(Q)  supporters to locate him.

9.  By a further decision dated 11 July 2017, the Director again rejected the applicant’s claim in the absence of any response to an earlier invitation for him to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (‘BOR 2 Risk’).

IV.  The Board’s Decision

10.  The applicant appealed against the Director’s Decision to the Board on 18 March 2015 (at which time the Director’s further decision had not been issued).  An oral hearing was conducted on 11 March 2016.  The Board dismissed the applicant’s appeal on 17 May 2018, and the Director’s decision was affirmed.  The Board doubted that after all those years, the PML(Q)  supporters would still have any adverse interest in the applicant, who was just a supporter without any post in his party, and PML(Q)  was no longer a major party in his home district.  Further and in any event, internal relocation options were available to the applicant.  His claim for non-refoulement protection failed on all applicable grounds.

V.  The Leave Decision

11.  On 4 June 2018, the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board.  In his supporting affirmation, he put forward two grounds for his intended challenge :

1)  He was not given any legal representation for his claim on BOR 2 Risk before the Director or for his appeal before the Board; and

2)  He was not provided with language assistance for his claim on BOR 2 Risk or in his appeal to the Board as he cannot read or write English.

12.  The Judge dealt with the application on papers, and rejected both of his two grounds by the Leave Decision dated 9 April 2021 ([2021] HKCFI 941).

13.  As for the applicant’s first ground, the Judge held at [10]-[11] that :

‘ 10. For his complaint in Ground (1)  of not being provided with legal representation for his claim under BOR 2 Risk before the Director or 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.

11.  The Applicant already had the benefit of legal representation in presenting his case under torture risk, BOR 3 risk and persecution risk 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 but during which he never submitted any additional facts or representation which may be relevant to the assessment of his BOR 2 Risk, and not even now in his application before me has he done so, and based on existing materials and the case advanced by him, and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground in his case, or that its assessment would be the same as for his other grounds. As such there is no merits in this complaint of the Applicant, nor is it reasonably arguable for his intended application.’

14.  As for the applicant’s second ground, the Judge held at [12] that :

‘ 12. As for his complaint under Ground (2)  of not being provided with language assistance regarding his BOR 2 Risk or in his appeal to the Board, for the same reasons as stated above, based on his own case the assessment of BOR 2 Risk would be the same as that for his other risks, and in the absence of any additional facts or representations that the Applicant may have put before the Board which could advance his case under the BOR 2 risk ground, or 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 do not find this complaint of his reasonably arguable either.’

15.  Having rejected the two grounds advanced by the applicant, the Judge refused to grant leave to apply for judicial review, holding at [14]-[16] that :

‘ 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.

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.’

VI.  The EOT decision

16.  On 7 June 2021, the applicant applied for an extension of time to appeal against the Leave Decision, as he was out of time for more than six weeks.  The Judge did not accept the applicant’s explanation for delay, holding at [4]-[5] of his EOT Decision dated 19 October 2021 that :

‘ 4. In the Applicant’s case, a delay of more than 6 weeks must be considered as very substantial, for which he asserted at the hearing of his summons that he never received the decision in the mail, and that it was only when he reported on his recognizance that he was informed of the decision by his immigration officer, but by then he was already out of time with his intended appeal.

5.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and in the absence of any further details or documentary evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided a good reason for his delay.’

17.  On the merits of the intended appeal, the Judge held at [6] that :

‘ 6. More importantly, the Applicant has failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or in his affirmation, and at the hearing of his summons he just stated that he no longer has any home in Pakistan after having been in Hong Kong for such a long time that he has nowhere else to go. As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal.’

18.  The Judge refused to grant to the applicant extension of time to appeal the Leave Decision.

VII.  The present application

19.  The applicant was late for more than two weeks in taking out the present summons without offering any explanation.

20.  The applicant did not set out any grounds of appeal in the summons.  In his affirmation also of 11 November 2021, the applicant merely stated that :

‘ … I am totally disagree with the decision of authorities and court as well. I think the court and authorities highly unfair to determined my case.’

21.  In his written submissions dated 25 November 2021, the applicant asserted, without particulars, that :

‘ (A)  The Respondent had unlawfully fettered his discretion by refusing my appeal on the grounds that they did not satisfy the requirement.

(B)  The Adjudicator acted in a procedurally unfair manner in dealing with my appeal[.]

(C)  The Respondent’s decisions to refuse my appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.

(D)  The Respondent failed to meet the greater care and duty owed to a self-represented claimant[.]’

22.  He submitted that in these circumstances, the Director and the Board were ‘in breach of procedural unfairness’.

23.  Also, he said that he had answered all the questions honestly but his credibility was found to be questionable.  Moreover, he claimed that the hearing before the Board was unfair due to the lack of care on the part of the Board to make appropriate arrangements in relation to the hearing bundle.

24.  Further, he claimed that the Board relied on unofficial source of news, hearsay and outdated cases, resulting in the finding that it was safe for the applicant to return to his country of origin.  However, he did not identify what source of news, hearsay or cases were unreliable.

25.  In addition, he asserted that the authorities discriminated against non-refoulement claimants and that the quick disposal of his claim was ‘unacceptable’ and ‘detrimental to the spirit of the judicial system’.

VIII.  Analysis

26.  In considering whether to extend time for appeal, the Court will have regard to :

1)  Length of the delay;

2)  Reasons for the delay;

3)  Prospect of the intended appeal; and

4)  Prejudice to the putative respondent if extension of time was granted.

27.  The applicant was more than six weeks late in taking out an application on 7 June 2021 before the Judge requesting an extension of time to appeal.  In the present application, the applicant did not put forward any explanation for his delay.

28.  On the prospect of an intended appeal, the Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge. General and bare assertions without any specific particulars are not proper grounds of appeal.

29.  The Judge had considered all relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

30.  The applicant has not provided any draft or proposed grounds of appeal.  In his written submissions, no valid ground of appeal can be found from his general and bare assertions set out above, which contain no particulars, and none of his assertions engage with the Judge’s reasons for dismissing his application.  They identify no error on the Judge’s part, but make complaints in relation to the decisions of the Director and of the Board.  None of them constitute proper grounds of appeal.

31.  As the applicant has not clearly and properly identified any error in the decision or any proper grounds of appeal, the intended appeal does not have any prospect of success.

IX.  Disposition

32.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, the applicant’s summons dated 11 November 2021 is dismissed.