RE IQBAL MUHAMMAD ASIF

CAMP 282/2021

[2021] HKCA 1543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 282 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1574 of 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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 Lung (“the Judge”)  dated 4 June 2020 refusing his application for leave to apply for judicial review.

2.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dated 16 July 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”)  dated 8 December 2016 rejecting his non-refoulement claim.

3.  The applicant has filed an affirmation and lodged a written submission in support of his application.  

4.  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.

5.  The applicant is a national of Pakistan aged 38.  He entered Hong Kong illegally and was arrested by the police on 3 May 2008.  He made a torture claim on 12 May 2008, which was taken as a non-refoulement claim upon the commencement of the unified screening mechanism in March 2014.  The applicant’s claim is based on fear of being harmed or killed by his neighbour and his sons because the applicant’s livestock had damaged their farmland and the applicant had accidentally injured one of the sons while driving his tractor.  It is also claimed that there are differences in their beliefs in that the neighbours are Shia Muslims while the applicant is a Sunni Muslim.  The details of the applicant’s claim were set out in the Director’s decision at [8] and the Board’s decision dated 1 October 2018 at [24] to [31].  We will not repeat them.    

6.  By his decision dated 8 December 2016, 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 against the Director’s decision to the Board was heard at an oral hearing on 15 May 2017.  By its decision dated 16 July 2018, the Board dismissed the appeal.  While the Board accepted the applicant had a difficult relationship with his neighbours, it did not accept this resulted in him being subjected to any prescribed harm in the past or any real risk of harm if he were to return to his home country.  The Board also rejected his claim that he is at risk of harm as a result of his Sunni beliefs, finding that his fears do not stem from anything more than a personal dispute that happened more than 11 years ago.  The Board concluded that he is not entitled to non-refoulement protection on any of the applicable grounds.

8.  On 8 August 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decisions.  The applicant did not provide any grounds for seeking relief.  He only stated in the supporting affirmation that his danger had been ignored.   

9.  The Judge heard the application at an oral hearing.  By a Form CALL-1 dated 4 June 2020[5], the Judge refused the application for the reasons he gave at [11] to [13]. Primarily, the Judge considered that the applicant failed to show there was error in the Board’s decision and that the intended judicial review has any prospect of success. 

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 18 June 2020.

11.  By a summons filed on 25 August 2020 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on the papers, and by his decision dated 20 July 2021 dismissed the application[6]. 

12.  On 27 July 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 more than two months when he filed the 25 August 2020 summons, which is a substantial delay.  In the application made to the Judge, the applicant stated in the supporting affirmation that he received the Court’s letter late, and he did not understand English and the judicial system in Hong Kong.  In the affirmation in support of the present application, the applicant merely stated that he did not receive the decision with no elaboration.  While we do not find the explanation satisfactory, we will focus on the merits of the intended appeal, which is a more important consideration.    

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 had not provided any grounds to support his application in the summons and supporting affirmation.  He only exhibited a marriage certificate which shows he was married in Hong Kong in March 2017 and a birth certificate showing his wife gave birth to their daughter in August 2017. 

18.  In the written submission, the applicant stated that although he was represented by the Duty Lawyer Service in the interview with the immigration officer, it was just “eye wash” and the Director had set out to reject his claim.  He also complained that he was not given a lawyer in the appeal to the Board, and the Board asked him questions that have no relevance to his claim and forced him to answer them.  He further argued that it was because the Judge refused to read and find out that he did not find any error in the Board’s decision.   

19.  In our view, the documents exhibited to the supporting affirmation and the matters stated in the written submission do not amount to viable ground of appeal.  The fact that the applicant has a family in Hong Kong is not a relevant consideration for the intended judicial review application and the intended appeal against the Judge’s decision.  As to the arguments in the written submission, they are raised for the first time in this application; they had not been put forward in the Form 86 or the supporting affirmation or at the oral hearing before the Judge.  It is not permissible to advance these fact-sensitive complaints in this application.  In any event, they are only general assertions without any supporting particulars or details and can hardly amount to viable grounds of appeal.

20.  We have in any event examined the Board’s decision.  We do not discern any legal error, irrationality or procedural irregularity that warrant intervention by the Court. We agree that the intended judicial review has no reasonable prospect of success, and the Judge was correct in refusing leave to apply for judicial review. 

21.  As the applicant’s intended appeal against the Judge’s dismissal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 27 July 2021.