RE WAQAS MUHAMMAD

CAMP 156/2021

[2021] HKCA 1898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 156 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1203 OF 2018)

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J U D G M E N T

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

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 1 March 2021 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”)  ([2021] HKCFI 476). An earlier application for extension of time to appeal was refused by the Deputy Judge on 3 May 2021 (“the EOT Decision”)  ([2021] HKCFI 1107).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 15 June 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 19 June 2017 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Pakistan.  He entered Hong Kong as a student on 12 February 2015 and was granted limited stay.  Subsequently, his education institute withdrew the sponsorship for him on 19 March 2015 and he overstayed and was arrested.  He was then referred to the Immigration Department where he raised a non-refoulement claim by way of a written representation dated 17 October 2015 on the basis that if he returned to Pakistan he would be harmed or killed by Shia Muslims.  Details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

5.  By a Notice of Decision dated 19 June 2017, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  On 27 July 2017, the applicant appealed against the Director’s Decision to the Board.  He attended an oral hearing before the Board on 13 February 2018 and gave evidence.  The Board dismissed his appeal on 15 June 2018 and confirmed the Director’s Decision.  The Board found on the evidence that the allegation that the risk of harm to the applicant, if he were refouled to Pakistan, would amount to a protected risk to be far-fetched and fanciful.  Having assessed the evidence, the Board also considered that state protection would be available and internal relocation was reasonable and available and the applicant failed to establish his claim on all applicable grounds.

The Leave Decision

7.  On 27 June 2018, the applicant filed a Form 86 with a supporting affirmation for leave to apply for judicial review against the Board’s Decision.  In his supporting affirmation, he contended that the decision of the Director was unreasonable as he failed to consider all the matters raised in his claim or give adequate reason for his decision.

8.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review for the following reasons:

“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.

13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

14. His ground in support of this application refers to the Director, whose decisions have been considered by the Board. I shall therefore take it to be the Board’s Decision. His reason is only his opinion without any evidence or specific in support of it. Quite the contrary, the Board has given reasons in support of its findings. See paragraphs 25 to 54 of the Board’s Decision.

15. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 16 March 2021, the applicant filed a summons for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, he was one day late.  In the EOT Summons, he contended he was late as he did not have knowledge of judicial review.  In his supporting affirmation dated 16 May 2018, he only asserted he would provide the grounds of his application at a later date.

11.  By the EOT Decision, the Deputy Judge refused to grant the applicant extension of time to appeal.  The Deputy Judge considered that given the applicant failed to provide any specific ground in support of his application, the applicant was unable to show any reasonable prospect of success in his intended appeal.  The Deputy Judge therefore refused to extend time for his appeal and dismissed the EOT Summons.

The Present Application

12.  By a summons dated 11 May 2021, the applicant reapplied for extension of time to appeal against the Leave Decision to this Court.  In his summons, he stated:

“I would like to seek extension of time to the file of notice of appeal. i was late because it was until when i go to signature and officier told me that your case is finished in high court. they pushed me to detain but i promised them that i will go to high court to submit and i told them that i have time to submit unfortuanttely i just submit 1 day late. its just because of my friend bcz he is on the work and he cant take off for me. and i really don’t have idea to submit the file in high court i am uneducated person.” [sic]

13.  In his supporting affirmation dated 11 May 2021, he contended that the judge gave an unfair decision because he cannot relocate anywhere in Pakistan and the Board did not give him time to submit the “F.i.R.” proof and he had no proof during his interviews.  He also asserted the Board examined his case on the basis of other applicants and he would provide his grounds at a later date.

14.  In his written submissions lodged on 16 July 2021, the applicant again repeated the alleged factual basis of his non-refoulement claim and that his enemies were too powerful and influential in Pakistan.  For his personal safety, he did not want to return to Pakistan.  He stated he only knew that the Director’s Decision and the Board’s Decision were totally wrong and his life would finish if he returned to Pakistan.

Discussion

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  The prospect of success of the intended appeal is important and the Court will not grant extension for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702 at [19] and Re Rahman Wasif [2019] HKCA 299 at [13].

17.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  Moreover, as repeatedly emphasised by this Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

19.  Applying the above legal principles to the present case, although the delay of one day was insignificant, nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper grounds of appeal or errors committed by the Deputy Judge.  The alleged factual basis of his non-refoulement claim as advanced by him are all general and bare assertions without specific particulars or evidence in support.  It is also pertinent to note that the allegation made in the affirmation in support of this re-application that the Board failed to give him time to provide proof was never made a ground for judicial review before the Deputy Judge.  It is not permissible for this new ground to be run in the intended appeal.  He has failed to point to any error in the Leave Decision.

20.  As there are no viable grounds of appeal, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the summons dated 11 May 2021 dismissed.