RE ABDUL GHAFOOR

CAMP 29/2022

[2022] HKCA 1390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 29 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 803 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 21 January 2022, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge CP Pang (“DHCJ Pang”)  dated 18 March 2021 refusing his application for leave to apply for judicial review ([2021] HKCFI 570)  (“the Leave Decision”). By a judgment dated 5 November 2021, Deputy High Court Judge Suffiad (“DHCJ Suffiad”)  had refused the applicant’s application for extension of time to appeal against the Leave Decision ([2021] HKCFI 3238)  (“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 4 May 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  respectively dated 17 July 2017 rejecting 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 surrendered to the Immigration Department on 11 November 2015.  By way of written representations respectively dated 3 April 2017 and 8 May 2017, he raised a non-refoulement claim on the basis that he would be harmed or killed by Baggi’s family as his brother-in-law murdered Baggi.  Factual details of the applicant’s claim were summarised by the DHCJ Pang at [1] - [2] of the Leave Decision.

5.  By a Notice of Decision dated 17 July 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.  On 31 July 2017, the applicant appealed against the Director’s Decision to the Board.  On 14 December 2017, he attended an oral hearing before the Board and was assisted by a Punjabi interpreter.  On 4 May 2018, the Board dismissed his appeal.  The Board found inconsistencies in the applicant’s evidence and considered him not credible.  Having assessed the evidence, the Board also found it implausible that Baggi’s family intended to harm or kill the applicant in revenge for the murder.  The Board therefore found that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 8 May 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  In his Form 86 and supporting affirmation, the applicant only stated he was not satisfied with the Board’s Decision and that his life was still in danger.

8.  By the Leave Decision, DHCJ Pang dismissed the applicant’s application for leave to apply for judicial review. His reasons were set out in detail at [12] - [22] of the Leave Decision:

“12. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

13. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will nevertheless examine the decision of the Director, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

14. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and found him to be an incredible witness. The Board rejected his account of primary facts based on the major inconsistencies and contradictions in his evidence. On the factual findings, there would be no factual basis in support of any of the applicable grounds.

15. As explained above, the assessments of evidence and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

16. The Form 86 and supporting affirmation contained nothing to demonstrate that the Board was unfair or unreasonable in the public law sense. The bare allegation that his life is in danger cannot constitute a viable ground.

17. I do not find any reasonably arguable basis to challenge the findings of the Board.

18. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

19. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

20. 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, irrational findings, or procedural unfairness in their decisions. Nor do I see any failure on their part to apply high standards of fairness.

21. For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

22. Accordingly, leave to apply for judicial review is refused.”

The EOT Decision

9.  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.

10.  On 30 June 2021, the applicant filed a summons (“the EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was almost three months late with his intended appeal.  In his summons and supporting affirmation, he contended he was late in making his application given his lack of knowledge and insufficient sources.

11.  By the EOT Decision, DHCJ Suffiad noted that the Leave Decision was sent on the same day to the applicant’s last reported address and was not returned as undelivered.  DHCJ Suffiad also noted that the applicant failed to put forward any proper or valid proposed grounds of appeal.  In the absence of any error of law or unreasonableness in the Leave Decision, the intended appeal would be hopeless.  According, the applicant’s application for extension of time to appeal was dismissed.

The Present Application

12.  By a summons and supporting affirmation both filed on 21 January 2022, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons and supporting affirmation, the applicant did not provide any reason for his delay or any ground in support of his intended appeal.

13.  Pursuant to the directions made by the Registrar of Civil Appeals on 21 January 2022, the applicant lodged his written submissions on 4 February 2022.  In those submissions, the applicant reiterated the alleged factual basis and procedural background of his non-refoulement claim.  He also alleged that his enemies wanted to kill him.

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 of almost three months as very substantial and the applicant failed to provide any good reason 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 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].

17.  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.  General and bare assertions of his fear if refouled plainly do not constitute valid grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. Accordingly, there is no proper ground of appeal and there is no basis to disturb the Leave Decision.

18.  For the above reasons, the intended appeal is a non-starter and 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 21 January 2022 is dismissed.