RE SADIQ IMRAN

CAMP 424/2021

[2022] HKCA 228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 424 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1494 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 Bruno Chan (“the Deputy Judge”)  dated 7 May 2021 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”)  ([2021] HKCFI 1275). An earlier application for extension of time to appeal was refused by the Deputy Judge on 24 August 2021 (“the EOT Decision”)  ([2021] HKCFI 2370).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 12 July 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 24 August 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 was arrested by the police on 12 May 2016 and was transferred to the Immigration Department on 15 May 2016.  He lodged a non-refoulement claim on 17 May 2016 on the basis that, if refouled, he would be harmed or killed by his uncle because he refused to join the Pakistan Muslim League (N Group).  Details of the applicant’s claim were summarised by the Deputy Judge at [2] - [5] of the Leave Decision.

5.  By a Notice of Decision dated 24 August 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 an oral hearing before the Board on 20 April 2018 and gave evidence with the assistance of an interpreter.  The Board dismissed his appeal on 12 July 2018 and confirmed the Director’s Decision.  The Board found the applicant’s evidence to be vague, exaggerated, inconsistent and implausible.  Having assessed the evidence, the Board considered that the applicant failed to substantiate his case on all applicable grounds.  Accordingly, the Board dismissed his appeal.

The Leave Decision

7.  On 30 July 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 his life would be under threat if he returned to Pakistan.  As the applicant did not request for an oral hearing, his application was considered on paper by the Deputy Judge.

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

“10. On 30 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would be in danger in his home country but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

11. 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.

12. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 31 – 46 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13. The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.

14. 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.

15.  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

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 26 May 2021, 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 five days late with his intended appeal.  In both the EOT Summons and the supporting affirmation, he only stated that he did not receive the Leave Decision in his mail box.  The applicant attended an oral hearing before the Deputy Judge on 10 August 2021.  An Urdu interpreter was present to provide language assistance.

11.  By the EOT Decision, the Deputy Judge considered that although a delay of five days may not be regarded as significant, the applicant failed to provide any good reason for his delay.  In the absence of any error in the Leave Decision being clearly and properly identified by the applicant, there was no prospect of success in his intended appeal and the EOT Summons was accordingly dismissed by the Deputy Judge.

The Present Application

12.  By a summons and supporting affirmation both filed on 4 October 2021, the applicant reapplied for extension of time to appeal.  No ground of appeal or reason for his delay was stated in his summons or supporting affirmation.

13.  Pursuant to the directions given by the Registrar of Civil Appeals on 4 October 2021, the applicant lodged his written submissions on 18 October 2021.  In his submissions, he claimed that his enemies would kill him if he returned to his country.  He further contended that he told his problems to the Director but his non-refoulement claim was rejected by the Director and the Board and his application for leave to apply for judicial review was refused by the High Court.  None of his submissions has identified any error in the Leave Decision or provide any proper ground of appeal.

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.  While a delay of five days may not be regarded as significant, the prospect of success of the intended appeal is important and the Court will not grant extension for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702 at [19] and Re Rahman Wasif [2019] HKCA 299 at [13].

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 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 4 October 2021 dismissed.