RE ASIF MUHAMMAD

CAMP 269/2022, [2024] HKCA 600

On Appeal From [2021] HKCFI 1768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 269 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1274 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 25 July 2022, the applicant reapplied to this court for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 22 June 2021 refusing to grant the applicant leave to apply for judicial review ([2021] HKCFI 1768)  (“the Leave Decision”).  By a subsequent decision dated 9 June 2022, the Deputy Judge also refused the applicant’s application for extension of time to appeal ([2022] HKCFI 1650)  (“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 11 June 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”)  dated 22 May 2015 and 17 August 2017 (collectively referred to as “the Director’s Decisions”)  rejecting the applicant’s non-refoulement claim.

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”).

4.  Subsequently, by way of a Request for Dismissal of Appeal dated 5 January 2024, the applicant requested to withdraw the present reapplication for extension of time to appeal.

5.  On the basis of his request to withdraw his application on 5 January 2024, we dismiss the applicant’s present reapplication for extension of time to appeal.  In any event, the present reapplication fails for lack of merits, which we will dismiss as explained further below.

Background

6.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 29 August 2009 and was arrested by the police on the same day.  On 31 August 2009, he lodged a torture claim, which was subsequently taken by the Director as a non-refoulement claim.  His claim was made on the basis that if refouled, he would be harmed or killed by his uncle Malik Khan Afsar due to a private land dispute.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [3] - [4] of the Leave Decision.

7.  By the Director’s Decisions, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR3 risk[2], persecution risk[3] and BOR2 risk[4].

8.  Subsequently, the applicant appealed the Director’s Decisions to the Board.  The applicant did not attend the scheduled hearings before the Board on 16 March 2018 and 6 April 2018 due to his alleged medical reasons.  On both occasions, he was represented by a lawyer from the Duty Lawyer Service and submissions were made by his lawyer on his behalf for his appeal before the Board.  On 11 June 2018, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decisions.

9.  In essence, the Board found that there was no credible evidence to show that the applicant would face any real or substantial risk of harm upon refoulement.  The Board also considered that internal relocation and state protection were available to the applicant.  Accordingly, the Board considered that the applicant failed to substantiate his case on all the applicable grounds and dismissed his appeal.  On a separate and independent ground, having considered the applicant’s conducts after his illegal entry into Hong Kong and his answers to the queries of the Board, the Board also dismissed his appeal because of the applicant’s lack of credibility.

The Leave Decision

10.  On 4 July 2018, the applicant filed a Form 86 with a supporting affirmation to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review was given in the Form 86. In his supporting affirmation, he stated that the Board’s Decision was not reasonable as it was made in his absence when he was sick in the hospital and without giving him a chance to explain or present his case.

11.  Despite his request for an oral hearing, the applicant failed to attend the hearing scheduled on 3 June 2021 and the Deputy Judge considered his application on paper.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  The Deputy Judge took issue with the way the Board arrived at its findings on the credibility of the applicant’s claim as the Board failed to conduct its own analysis on the primary facts of the applicant’s claim of threats of harm from his uncle over a land dispute: see the Leave Decision at [13].  However, the Deputy Judge found that this error of law made by the Board would not assist the applicant in his intended challenge against the Board’s Decision.  His reasons were set out at [14] - [18] of the Leave Decision:

“14. Nevertheless, it would not in my view assist the Applicant or advance his case for his intended challenge of the Board’s decision, as the Adjudicator did also find, correctly in this case, from the COI available before the Board the option of reasonable internal relocation within Pakistan available to the Applicant, and that he also rightly agreed with the Director that it would not be unduly harsh for the Applicant as an able-bodied young adult to move to other parts of Pakistan without any risk of being located by his uncle that it was correct for the Board to conclude that the Applicant’s claim for non-refoulement protection failed on all the applicable grounds.

15. 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.

16. In the Applicant’s case, as noted above, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.

17. 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.

18.  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.”

The EOT Decision

12.  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.  No notice of appeal was filed by the applicant within the 14-day period.

13.  On 5 August 2021, the applicant filed a summons together with a supporting affirmation for an extension of time to appeal against the Leave Decision.  By then, he was over four weeks late with his intended appeal.  In his supporting affirmation, he stated that he did not receive the Leave Decision and complained that it was unfair to dismiss his application for leave for judicial review without hearing his argument.

14.  The applicant requested an oral hearing which was originally scheduled on 21 April 2022, but postponed to 25 May 2022 for his religious reason.  He failed to attend the postponed hearing on 25 May 2022 for his alleged medical reason, which the Deputy Judge found to be incredible.  The Deputy Judge proceeded to deal with his application in his absence and on paper.

15.  By the EOT Decision, the Deputy Judge considered that the Leave Decision was sent to the applicant’s last reported address on the same date without being returned through undelivered post, and found that his reason of delay was a bare assertion.  As there was no merit in the intended judicial review, having considered all factors, the Deputy Judge refused to grant the applicant extension of time to appeal.

The Present Application

16.  By a summons filed on 25 July 2022 together with a supporting affirmation, the applicant sought to challenge the court’s decision dismissing his application for leave to apply for judicial review.  In the summons, he asserted that he did not receive any decision from the court and claimed that he disagreed with the decision of the court.  In his supporting affirmation, he repeated his disagreement with the Deputy Judge’s decisions.

17.  Pursuant to the directions made by the Registrar of Civil Appeals on 25 July 2022, the applicant lodged his written submissions on 3 August 2022.  In those submissions, he repeated the factual basis of his non-refoulement claim and asserted that the Deputy Judge refused to grant him leave to apply for judicial review because he did not attend the oral hearing.  He claimed that his life would be in danger if this Court refused to grant him leave to appeal.

Discussion

18.  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].

19.  We consider that the applicant’s delay of over four weeks is significant and we agree with the Deputy Judge that the applicant has failed to give any good reason for his delay.  The court record shows that the EOT Decision was also sent on 9 June 2022 to the applicant’s last reported address which was the same as stated in the present summons and his Request for Dismissal of Appeal without being returned through undelivered post.  Accordingly, 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].

20.  The general approach in dealing with appeals in non-refoulement cases 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].

21.  In our view, 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.  His allegation that the Deputy Judge refused to grant him leave because of his absence at the oral hearing was misconceived and wholly without basis.  Accordingly, there is no proper ground of appeal and clearly no basis to disturb the Leave Decision.

22.  For the above reasons, the intended appeal is a non-starter and has no prospect of success.  It will be futile to extend time. We would therefore have also dismissed the applicant’s summons filed on 25 July 2022 on merits in any event. We further make no order as to costs.