RE MUHAMMAD NAZEER

CAMP 556/2022, [2024] HKCA 648

On an intended appeal from [2022] HKCFI 909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 556 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 56 OF 2016)

________________________

________________________

AND

(ON AN INTENDED APPEAL FROM HCAL NO. 88 OF 2021)

________________________

________________________

(Consolidated pursuant to the Order of
Deputy High Court Judge Bruno Chan dated 1 March 2022)

________________________

J U D G M E N T

________________________

Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal the decision of Deputy High Court Bruno Chan (“the Judge”)  made on 29 March 2022[1]. By the decision, the Judge dismissed the applicant’s applications for leave to apply for judicial review made in HCAL 56/2016 and HCAL 88/2021, which had been ordered to be consolidated.

2.  The applicant has filed a supporting affirmation and also lodged a written submission to support his application.  

3.  Under Order 59 rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Pakistan, now aged 50.  He was born in Gujranwala, Punjab, Pakistan.  He and his family members are Sunni Muslims.  The applicant entered Hong Kong illegally and was arrested by the police on 24 July 2007.  He raised a torture claim on 18 August 2008, which was later treated as a non-refoulement claim based on fear of being harmed or killed by retaliating Wahhabi Muslims due to a land dispute between the Sunni Muslims and Wahhabi Muslims which originated in February 2006.

5.  According to the applicant, the Wahhabi Muslim opposed the building of accommodation for the Sunni Imams next to a Sunni mosque in his paternal village in Khariyan.  The dispute led to a violent conflict during which his cousin was killed by the Wahhabis and his cousin’s husband was injured.  The applicant and his uncle, Ramzan, reported the incident to the police leading to the arrest of ten Wahhabis.  On two occasions, some Wahhabis attacked the applicant in retaliation.  Fearing for his personal safety, the applicant left Pakistan for China and eventually entered into Hong Kong illegally from Shenzhen.  Details of the applicant’s claim are set out at [7] and [3] of the first and second decisions of the Director of Immigration (“Director”), and [1] to [9] and [7] to [22] of the first and second decisions of the Torture Claims Appeal Board (“Board”).

6.  By his decision dated 31 July 2014, the Director rejected the applicant’s claim based on the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds.  The applicant appealed to the Board.  A hearing took place on 11 June 2015.  By a decision made on 1 March 2016, the Board dismissed the appeal.  

7.  In gist, the Board had regard to the incidents and history of the dispute as related by the applicant, and took the view that even if it were established that the assailants were Wahhabis, it was not established that their motivation was to harm or to kill the applicant. The Board was not satisfied that the two possible causes of harm presented by the applicant, namely the land dispute between the Sunnis and Wahhabis and retaliation over the arrest of the Wahhabis, could give rise to the level of harm entitling the applicant to non-refoulement protection under the torture risk, BOR 3 risk and persecution risk grounds.  In respect of the land dispute, the building plan was suspended and there is ongoing reconciliation between the Sunnis and the Wahhabis.  There is no reason for the Wahhabis to harm the applicant if he refrains from being involved in the affairs of his uncle’s village.  As to the grudges held by the Wahhabis over the arrest, there was a lack of details on the proceedings and events subsequent to the arrest, and the applicant also seemed not to be interested in the outcome of the investigation.  There was no basis for believing that there was a real or serious risk that the Wahhabis would kill or harm the applicant.  The Board did not consider it was necessary to consider the availability of viable internal relocation or the effectiveness of state protection.

8.  On 8 March 2016, the applicant filed a Form 86 with supporting affirmation in HCAL 56/2016 to apply for leave to judicially review the Board’s decision.  

9.  Before the application was dealt with by the Court, the Immigration Department invited the applicant to submit additional information for the assessment of his claim including BOR 2 risk[5]. Additional information was provided by the applicant.  By his second decision dated 4 July 2017, the Director rejected the applicant’s claim having regard to the BOR 2 risk grounds. The applicant appealed the Director’s second decision to the Board.  A hearing took place on 11 November 2020 before the Board comprising a different adjudicator, during which the applicant again gave evidence and also answered questions put by the Board.  By its decision dated 29 December 2020, the Board dismissed the appeal.

10.  The Board found that even if the applicant’s claims were accepted in full, it was not established that he had any direct involvement in the land dispute in his paternal village, as he neither lived nor worked there and did not witness his cousin’s death.  He also did not know the identity of his attackers.  The applicant further conceded at the hearing that in the First Information Report about his cousin’s murder produced by him, he was not named as either an informant or a witness.  As to his fear of violence by Wahhabi Muslims, the Board pointed out that whilst there was undoubtedly sectarian violence in Pakistan, the country-of-origin information (COI)  indicated that it was overwhelmingly directed at Shia Muslims and other minority religious groups.  The Board was not satisfied that the level of generalised violence in Pakistan was such as to pose a real or substantial risk to the applicant’s right to life under BOR 2 should he return to his home country.  The Board further found that, given the lapse of time of 15 years after the incidents referred to in his claims, there was no substantial risk that the applicant would face any greater risk of the violation of his right to life if he were refouled to Pakistan.  The Board accordingly dismissed the applicant’s appeal and affirmed the Director’s second decision.

11.  On 21 January 2021, the applicant filed a Form 86 with supporting affirmation in HCAL 88/2021 to apply for leave to judicially review the Board’s second decision.  

12.  The Judge heard the applications in HCAL 56/2016 and HCAL 88/2021 together at an oral hearing held on 1 March 2022.  The grounds of review raised by the applicant in the two applications were summarised by the Judge at [11] and [15] of the Form CALL-1 dated 29 March 2022 as follows:

(1)  HCAL 56/2016

“(1)  Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)  Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)  Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Pakistan;

(4)  Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirected himself as to the extended meaning of state protection;

(5)  Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(7)  Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

 (8)  Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.”  

(2)  HCL 88/2021

“(1)  That the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural error or unfairness; and

(4)   That the Board failed to meet the greater care and duty owed to a self-represented claimant.”

13.  For the reasons set out at [17] to [23] of the Form CALL-1, the Judge refused to give leave for applying for judicial review:

“17. They are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decisions, or how did the Board unlawfully fetter it discretion in rejecting his appeals or acted procedurally unfair in dealing with his appeals, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant in either applications, nor was he able to do so at the hearing of his application. As such and in the absence of any error of law or irrationality or procedural unfairness in either of his appeals before the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge in either application.

18. 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.

19. The only complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle for both of his appeals being provided to him only a few days before his appeal hearings before the Board which consisted of the Director’s skeleton submissions and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal on both occasions.

20. Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his TCF or SCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his TCF and SCF were completed on his own instructions with legal assistance, and that at his oral hearing for either of his appeals he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeals. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeals before the Board, nor do I find it reasonably arguable for his intended challenge either.

21. Furthermore, the fact is that it has been established by the Director in his first decision 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, a decision also confirmed by the Board, there is simply no justification to afford the Applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

22. 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.

23.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended applications for judicial review, and I accordingly refuse his leave applications.”

14.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  The 14-day period for the applicant to appeal expired on 12 April 2022.

15.  By a summons filed on 22 June 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard his application at an oral hearing held on 26 October 2022.  Assisted by a Punjabi interpreter, the applicant explained that the delay was because he was unrepresented and was unaware of the 14-day time limit.  By his decision handed down on 9 November 2022[6], the Judge refused the application.

16.  By the present application, the applicant renews his application for extension of time to appeal.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted. 

17.  The applicant was more than ten weeks late when he filed the 22 June 2022 summons, which is a substantial delay in the context of the 14-day time limit. The applicant repeated in his affirmation that he was unrepresented and was unaware of the 14-day time limit and further claimed that he had never received the court’s decision.  We note from the court record that the Form CALL-1 was sent to the applicant’s last reported address which is the same address provided in his Form 86 for HCAL 88/2021 as well as in the present application, and it had not been returned by the Post Office.  As with the Judge, we do not consider the substantial delay to have been satisfactorily explained.  That said, the most important consideration is the merits of the intended appeal, to which we now turn.

18.  In considering the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the primary decision maker afresh as if it is a fresh application for judicial review.

19.  In the present summons, the applicant asked for leave to advance a new ground of appeal. He, however, provided no elaboration or particulars of the new ground.  In his supporting affirmation, he asserted that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and the situation in his country.  This is clearly incorrect as the applicant had attended the hearing before the Judge and made representations on his application with the assistance of an interpreter.  We also note that the Judge had taken into consideration his submissions made at the hearing as well as the grounds put forward in his two applications.   

20.  As to his written submissions, the applicant quoted extensively from decisions dealing with high standards of fairness and Wednesbury unreasonableness.  He also argued that: (1)  high standards of fairness should be applied to the determination of torture claim as life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved; and (2)  the Board acted in a procedurally unfair manner in dealing with his applications without properly assessing his credibility.

21.  We are of the view that what was put forward by the applicant does not constitute viable grounds of appeal against the Judge’s decision in that:

(1)  The written submission has not explained how the legal principles and passages quoted in it relate to the applicant’s case.  This Court had repeatedly pointed out that general assertions or propositions of law without indicating how they relate to the facts of the case are of no assistance to the applicants: see Re Mizan Sikder [2019] HKCA 20; Ibrahim v Simon Russell [2019] HKCA 1327; and Re Salim Ahmen [2020] HKCA 244.

(2)  There is no elaboration or particulars as to in what way the Board had acted unfairly in assessing the applicant’s two appeals.  We note that, contrary to the applicant’s assertion, the Board, two different adjudicators, had given careful consideration to the applicant’s evidence, and had adequately explained its findings in both decisions.  As a matter of fact, in both decisions, the Board rejected the applicant’s claim not on credibility but more on an assessment of the level of harm and risk of future harm. The Board considered that on the applicant’s own factual case, the threshold requirements for non-refoulement protection under the applicable grounds were not met.  As explained above, assessment of evidence and risks of harm are matters for the Director and the Board, who are the primary decision makers.  The court may only disturb their findings if it can be shown that their decisions are wrong in law, irrational or procedurally irregular or unfair.

22.  We have separately considered the Board’s two decisions. Like the Judge, we do not discern any legal errors, irrationality or procedural irregularities.  We see no proper basis for disturbing the Board’s rejection of the applicant’s factual case in both decisions.  

23.  For the above reasons, we agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.  As the applicant’s intended appeal against has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 30 December 2022.