RE RIZWAN MUHAMMAD

CAMP 199/2021

[2021] HKCA 1475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 199 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 809 of 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 27 November 2020 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission in support of 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 applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 13 July 2017 rejecting his non-refoulement claim and the decision of the Torture Claims Appeal Board (“the Board”) dated 30 April 2018 dismissing his appeal against the Director’s decision.

5.  The applicant is a national of Pakistan aged 49.  He entered Hong Kong on 14 January 2003 and was given permission to remain as a visitor until 20 January 2003.  He overstayed, during which he made refugee application to the UNHCR, which was refused in 2005.  On 14 January 2007, he made a torture claim, which was refused on 31 August 2011.  His petition to the Chief Executive against the refusal of the torture claim was dismissed on 30 September 2011.  He was repatriated to Pakistan on 11 November 2011.  In December 2013, the applicant entered Hong Kong illegally.  He surrendered to the Immigration Department on 3 July 2014, and later raised a non-refoulement claim.  His claim is based on fear of being harmed or killed by people of the Pakistani Muslim League (Q) because of his support for the rival party, Pakistani Muslim League (N).  The details of the applicant’s claim were set out in the Director’s decision at [8] and the Board’s decision at [7] to [19]. We will not repeat them.     

6.  By his decision dated 13 July 2017, the Director rejected the applicant’s claim on the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant’s appeal to the Board was heard on 13 December 2017, during which the applicant gave evidence and answered questions from the Board.  By its decision dated 30 April 2018, the Board dismissed the appeal.  The Board found significant inconsistencies in his case and contradictions between his evidence before the Board and the account he gave to the Director.  The Board did not find the applicant a reliable witness and did not accept he had been threatened or subject to adverse treatment by reason of his support or membership of the Pakistani Muslim League (N) party.  The Board considered the applicant fabricated his case to create a claim for non-refoulement protection.  The Board concluded that the applicant failed to establish he faces a real risk of harm, and concluded that he is not entitled to non-refoulement protection on any of the appliable grounds.

8.  On 9 May 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  His grounds for seeking relief as summarised by the Judge at [12] of the Form CALL-1 are:

“(1) That both the Director and the Board failed to conduct inquiries from reliable sources and did not fully study the ground realities of his case and aftermath in case he is being forced to return to his home country;

(2) That the decision-maker just refused his appeal without any reasonable ground;

(3) That the Applicant is not a very educated person and sometimes confused and did not understand the questions completely or reply them precisely as he does not have a good memory and sometimes forgets; and

(4)  That in the light of the new law, relocation is practically impossible as the fight against terrorism touches new high state protection in fact is non-existent, and hence the decision is betrayed a bias and formulistic approach which could not fairly assess the danger to his life.” 

9.  The Judge heard the application at an oral hearing.  By a Form CALL-1 dated 27 November 2020[5], the Judge refused to give leave to apply for judicial review and gave his reasons at [13] to [18] as follows: 

“13. These 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 applied to his case or how the Director or the Board had erred in their decision, or in what way did they fail to conduct inquiries as to the real situation of his claim, or what bias or formulistic approach did they use in assessing relocation or the risk he may face in his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while his complaint that his appeal was rejected by the Board without any reasonable ground is plainly incorrect when it clearly set out in details its reasons for rejecting his appeal as set out in paragraphs 32 – 57 of its decision. As such I do not find any of his proposed grounds reasonably arguable for his intended challenge.

14. 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.

15. 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 32 – 57 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 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.

16. 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 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.

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.”

10.  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 order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 11 December 2020.

11.  By a summons filed on 4 January 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 4 May 2021, and by his decision handed down on 13 May 2021[6] refused the application. 

12.  On 27 May 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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. 

14.  The applicant was late by about three weeks, which is not insubstantial.  In the application before the Judge, the applicant explained that as he was unrepresented and did not know how to appeal against the decision, he had to seek help from friends.  He said that by the time he had prepared the necessary documents it was already out of time.  He said nothing about the delay in the present application.  Considering that the applicant is unrepresented and the length of the delay, we are prepared to excuse his delay and would focus on the merits of the intended appeal.      

15.  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].

16.  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 Board afresh as if it is a fresh application for judicial review.

17.  In the present application, the applicant did not put forward any ground in support of his intended appeal in his summons and supporting affirmation.

18.  In the written submission, the applicant stated that his family is still in Pakistan but he cannot go back because his life is under threat there.  He also said that he risked his life to sneak into Hong Kong because he would rather die in the high sea than in the hands of his enemy.  He complained that the Director and the Board disbelieved him by relying only on country of origin information, which is different from the real situation.  He asked that he be given leave to appeal against the Judge’s decision.

19.  In our view, the matters put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision.  Assessment of credibility and risk of harm is a matter for the Director and the Board, who are the primary decision makers. The Court in a judicial review will only interfere with their findings if there are errors of law, irrationality or procedural irregularities in their decisions.  In the present case, the Board had rejected the factual basis of his claim as being not credible.  We have examined the Board’s decision.  Like the Judge, we do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  This being the case, the Court has no proper basis to disturb the Director or the Board’s decision.  The intended judicial review therefore has no reasonable prospect of success, and the Judge was correct in refusing leave to apply for judicial review.

20.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to give leave to appeal for judicial review has no prospect of success.  Hence, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 27 May 2021. 

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5] [2020] HKCFI 2586.

[6] [2021] HKCFI 1299.