RE AHMED WAQAR

CAMP 8/2021

[2021] HKCA 1225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 8 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 267 OF 2018)

________________________

________________________

___________________

J U D G M E N T

___________________

The Court:

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 23 June 2020 refusing to grant extension of time for the applicant’s application for leave for judicial review and dismissing his application for leave to apply for judicial review.  The intended judicial review was against the decision of the Director of Immigration (“the Director”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 9 March 2016 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 13 March 2016. 

3.  The applicant’s claim was based on threats from members of an opposing political party over a dispute during a local election.  The details of the applicant’s claim have been summarised by the judge at [1] to [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 26 August 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2] and the torture risk^[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  The Board dismissed the appeal on 16 May 2017 (“the Board’s Decision”) without a hearing.  At [25], [35] and [41] of the Board’s Decision, the Board did not accept that the applicant had well-founded fears of being subject to any of the proscribed risks of harm (except BOR 2 risk^[4], which was not dealt with in the Board’s Decision).  The Board was also satisfied at [31] that there was nothing to suggest that state protection would not be available for the applicant and at [44] that internal relocation would be viable.

6.  By a Notice of Further Decision dated 14 November 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk, and decided against him.  The applicant did not appeal against this decision.

The judge’s decision

7.  The applicant filed a Form 86 on 21 February 2018 which contained no ground for seeking relief.  The application for leave for judicial review was apparently directed against a decision of the Director but the applicant did not identify the decision.

8.  In his affirmation in support of the leave application filed on 21 February 2018, the applicant deposed that:

“to appeal and review and to reject the decision made by the immigration department against my claim. They disregard my dangerous situation.”

9.  In the affirmation, the applicant stated that he made the affirmation in opposition to the Summons filed on 16 May 2017.  There was apparently no summons taken on 16 May 2017 concerning the applicant but notably 16 May 2017 was the date of the Board’s Decision.

10.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review and refused to grant leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [17] of the CALL-1 Form:

“11. He was however by then seriously late with his Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

12. As the last day of the three-month period for the Applicant to file his Form 86 fell on 16 August 2017, he was therefore more than six months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

13. In the Applicant’s case, a delay of more than six months must be regarded as substantial and excessive, for which he did not provide any explanation, nor as noted above did he put forward any grounds or identify any error of law or procedural unfairness in the Board’s decision, in the absence of which I do not find any merits in his intended application.

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 an applicant to present and articulate his or her 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 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. 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, I agree that the Board was entitled to find 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.

17. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

Application for extension of time to appeal and grounds for appeal

12.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 13 August 2020, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 8 December 2020.

13.  By a summons filed on 6 January 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that:

“The High Court judge refused my leave to apply for judicial review. I do not agree with his decision. I want to challenge his decision.”

14.  In the affirmation filed on the same day, the applicant deposed that:

“Affirmation for leave to apply for judicial review against the Director of Immigration, but the High Court judge refused my leave.”

15.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 26 February 2021, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 rule 14A.

17.  In the documents filed for the application before us, the applicant did not give any explanation for the delay in bringing the intended appeal.  When the applicant applied for extension of time before the judge, he claimed that he did not receive the CALL-1 Form in time but he did not give any particulars or elaboration.  There is nothing to support this bare assertion by the applicant and we are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.

18.  We nonetheless go on to consider the merits of the intended appeal.

19.  The applicant only claimed that he did not agree with the decision by the judge but he did not identify any error in the CALL-1 Form.  He has therefore failed to advance any viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

20.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 6 January 2021 is dismissed accordingly.

21.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.