RE MUHAMMAD IMRAN

CAMP 65/2023, [2024] HKCA 637

On appeal from [2022] HKCFI 1394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 65 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 615/2019)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”) dated 17 May 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 8 February 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 10 August 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 17 August 2007 and was arrested by the police on 19 August 2007.  Subsequently, the applicant on 6 September 2007 lodged a torture claim under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”), which was rejected by the Director on 30 July 2013.  On 6 August 2013, the applicant appealed against the dismissal of the CAT Claim to the Board, which as can be seen below, was also dismissed.

3.  The applicant subsequently lodged a non-refoulement claim on grounds other than torture, with the relevant claim form submitted on 3 July 2017.

4.  The applicant’s claim was based on a fear of being harmed or killed by members of the Pakistan Muslim League (Q) by reason of his opposing political views / aims.  The details of the applicant’s claim have been summarised by the Judge at [1] to [5] of his decision (“the CALL-1 Form”)[1].

5.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the persecution risk[2], the BOR 2 risk[3] and the BOR 3 risk[4].  

6.  The applicant appealed to the Board against the dismissal of his CAT Claim and his non-refoulement claim, which the Board dealt with together by treating the CAT Claim as an application for non-refoulement under the Unified Screening Mechanism. 

7.  After a hearing on 13 September 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board found that on the whole, the applicant failed to put forward a truthful or reliable account of events on which he had based his alleged fear of harm. 

The Judge’s decision

8.  The applicant filed a Form 86 on 5 March 2019 seeking to judicially review the Board’s Decision.  In his supporting affirmation, the applicant merely stated that his life was still in danger in his home country.

9.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [10] to [15] of the CALL‑1 Form:

“10.   On 5 March 2019 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 just stated that he is not satisfied with the decision and that his life is still in danger in his home country but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such 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 for his intended challenge.

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 62 – 74 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, 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.

13.  Furthermore, the fact is that it has 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, a decision also confirmed by the Board, 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 present application for extension of time to appeal

10.  The applicant’s last known address at the time of the Judge’s decision was at Bowring Street, Jordan (“the Jordan Address”). 

11.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the Jordan Address on 17 May 2022, which was not returned undelivered.

12.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 17 May 2022.

13.  The applicant thereafter took out a summons in the Court of First Instance on 18 July 2022 seeking extension of time to appeal, in which his address was stated to be at Nathan Road, Tsim Sha Tsui (“the TST Address”).  In the summons and his supporting affirmation filed on the same date, he merely stated that he received the judgment “late”, could not “find [the] judgment in [his] mail box”, and therefore “missed [the] time to apply”.

14.  The applicant’s application to appeal out of time was dismissed by the Judge on 21 December 2022[5].

15.  By a summons filed on 13 February 2023, the applicant renewed his application for extension of time to appeal before this court. In the summons and his supporting affirmation, the applicant merely asked this court to extend time for his appeal.

16.  In his written submissions lodged on 28 February 2023, the applicant simply repeated the procedural history of his claim, and that he “did not get any practical relation between any decision and [his] arguments”.

Discussion

17.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

18.  As noted above, the Judge’s decision was sent to the last known address of the applicant, i.e. at the Jordan Address, and was not returned undelivered.  The inference to be drawn is that the applicant has had notice of the Judge’s decision within the period which he was permitted to lodge an appeal.

19.  It was in any event incumbent upon the applicant to notify the court of any change of address as soon as possible, including that to the TST Address, and any consequences of having failed to do so lie with him.  In any event, the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal, nor has he explained how or when he had come to learn of the Judge’s decision.

20.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay. 

21.  We have nonetheless proceeded to consider the merits of the intended appeal.

22.  As to these, the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

23.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

24.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

25.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 13 February 2023 is accordingly dismissed.