RE QASIM MAIRAJ DIN

CAMP 252/2022, [2023] HKCA 1045

On Appeal From [2021] HKCFI 3704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 252 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 125 OF 2019)

_________________________

_________________________

___________________

J U D G M E N T

___________________

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

1.  On 8 December 2021, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim and dismissed his leave application (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap. 4A) (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 28 December 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 9 June 2022.

3.  On 14 July 2022, the applicant filed his summons in CAMP 252/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 14 July 2022, the applicant lodged his written submissions on 28 July 2022.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Pakistan. He arrived in Hong Kong on 9 December 1999 as a visitor with permission to remain until 20 January 2000.  He did not depart and overstayed.  He was arrested by the police on 24 January 2008.  He was then referred to the Immigration Department for investigation.  On 31 January 2008, he raised a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment alleging that if refouled, he would be harmed or killed by some local Sunni Muslims over a dispute when, as a security guard, he was instructed by his superiors to deny some Sunni Muslims entry to a Shia mosque in his home district back in 1998.  He alleged he was subsequently attacked by a group of Sunnis.  The factual background of this case was succinctly summarised by the Judge at [2] – [6] of the JR Decision ([2021] HKCFI 3704).  The torture claim was rejected by the Director of Immigration (“the Director”) on 31 October 2012 and the appeal was rejected by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) on 9 January 2014.   The applicant subsequently sought non-refoulement protection and filed a Supplementary Claim Form dated 31 October 2014.  

7.  By a Notice of Decision dated 13 May 2015 and a Notice of Further Decision dated 24 January 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], and the persecution risk[3].

8.  On 3 February 2017, the applicant lodged an appeal to the Board against the Director’s decision dated 24 January 2017 on BOR 2 risk only, for which he attended an oral hearing on 1 November 2018.  By its decision dated 4 January 2019, the Board dismissed the appeal.  For the reasons set out at [20] to [26], the Board did not find the applicant a truthful witness as his case was evasive, lacking in particulars and unbelievable.  The incident of the applicant’s refusal of entry to some Sunni Muslims took place some 20 years ago and it is inconceivable that even up to the present time, there was still danger to his life upon his return to Pakistan as he alleged.  Further, the dispute was confined to his local area and there is no evidence suggesting that the Pakistani Government would assist the Sunnis to track him down so as to enable them to kill him.  Therefore, it was not accepted that there were substantial grounds for believing that the applicant would be subjected to arbitrary deprivation of his life whether by the state or by individuals and that in any event there was state/police protection available to him upon his return to Pakistan.  Internal relocation is a viable option.  Therefore, the Board found that the applicant’s case did not warrant non-refoulement protection on the ground of BOR 2 risk.   

Application for leave to start judicial review

9.  On 14 January 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.[4]  He did not advance any ground for seeking relief in his Form and in his supporting affirmation save for saying that he rejected the decision which disregarded his dangerous situation.

The JR Decision

10.  The applicant did not request an oral hearing and the Judge disposed of his application on paper.  After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review with reasons set out in [12] - [16] of the JR Decision:

“12. On 14 January 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 merely stated that he rejects the decision which disregarded his dangerous situation but without providing any details or particulars or elaboration as to how it did, 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.

13. 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.

14. 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 19 – 26 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as submissions made by his lawyer on his behalf, 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.

15. The fact is that it has been established by both the Director and the Board in their respective decisions 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.

16. 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.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 28 December 2021 for an extension of time to appeal.  That was dismissed by the Judge on 9 June 2022.  Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

13.  As for (1), the applicant was late by 6 days between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was not serious.

14.  As for (2), the reasons for the delay, the applicant explained in his affirmation that he received the JR Decision late in the mail.  Be that as it may, the delay is insignificant, and we will focus on examining the merits of the application.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any valid grounds of appeal to challenge the Board’s decision nor did he pinpoint any specific error in the JR Decision. 

16.  In his written submissions, he merely reiterated that he has a threat to his life in Pakistan. 

17.  It is clear from the Board’s decision that the applicant’s claim that 20 years on, there would still be a threat to his life was rejected as his evidence was vague and implausible.  Further, it was found that there is reasonable state protection and internal relocation is a viable option.  The Board is entitled to reach its findings and conclusions and the court would only intervene if there were valid public law grounds.  We do not see any in this case. 

18.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

19.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 14 July 2022.