RE HUSSAIN JAMAL

CAMP 133/2022

[2022] HKCA 1556

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 133 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 797 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  By a summons filed on 29 April 2022, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 22 September 2020 refusing his application for leave to apply for judicial review ([2020] HKCFI 2375)  (“the Leave Decision”). By an earlier judgment dated 22 April 2021, the Deputy Judge also refused the applicant’s application for extension of time to appeal against the Leave Decision ([2021] HKCFI 979)  (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 12 April 2018 (“the Board’s Decision”), and the decision of the Director of Immigration (“the Director”)  dated 29 March 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 illegally on 1 January 2014 and was arrested by the police on 12 April 2014 for illegally remaining in Hong Kong.  On 14 April 2014, he raised a non-refoulement claim on the basis that he was in fear of being harmed or killed by his paternal uncle owing to a land dispute if he returned to Pakistan.  Details of the applicant’s claim were summarised by the Deputy Judge at [1] - [4] of the Leave Decision.

5.  By a Notice of Decision dated 29 March 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 6 April 2017, the applicant appealed against the Director’s Decision to the Board.  On 20 February 2018, he attended an oral hearing before the Board during which he gave evidence.  On 12 April 2018, the Board dismissed his appeal.  In essence, the Board found that the applicant’s evidence was flawed and unreliable as to his claim of land dispute between his father and his uncle which led to threats against him.  Having assessed the evidence, the Board considered that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 7 May 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  As summarised at [9] of the Leave Decision, in his supporting affirmation, the applicant put forward the following grounds for his intended challenge:

(1)  irrationality in the Board’s failure to consider the concept of state acquiescence;

(2)  procedural impropriety in making insufficient inquiry;

(3)  failure to provide adequate reasons as to its decision made;

(4)  procedural impropriety / unfairness in failing to investigate into the Country of Origin Information of Pakistan;

(5)  irrationality in failure to place weight on relevant information and / or selectively placing weight on irrelevant information;

(6)  irrationality in failure to consider a consistent system of human rights violations;

(7)  irrationality in failure to consider state protection exists in Pakistan;

(8)  irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(9)  procedural impropriety in failing to call for psychological and / or psychiatric reports and/or evaluations;

(10)  procedural impropriety in applying the incorrect standard of proof;

(11)  no reasonable basis for rejecting the credibility of his claim;

(12)  failure to consider the extended form of state acquiescence;

(13)  failure to fully consider the COI reports in assessing risk to the Applicant;

(14)  irregularity of the decision-maker being a different person than the interviewing officer; and

(15)  no proper basis for consideration of internal relocation.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review. His reasons were set out in detail at [10] - [15] of the Leave Decision:

“10. All these however appear to me just some standard pro forma grounds commonly used in this type of application but wholly irrelevant to the Applicant’s case, or are just his broad and vague assertions containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or why was the concept of state acquiescence relevant to his case, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or how did the Board fail to apply the correct standard of proof, while the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he would be prejudiced by his appeal being heard by a different decision-maker from the immigrant officer. As such I do not find any of them reasonably arguable 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 33 - 83 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 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 EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision 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 30 October 2020, the applicant filed a summons (“the EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was 24 days late with his intended appeal.  In his summons and supporting affirmation, he alleged that he missed the deadline and only received the Leave Decision on 28 October 2020.

11.  By the EOT Decision, the Deputy Judge noted that the Leave Decision was sent on the same day to the applicant’s last reported address which was the same as stated in his extension of time to appeal application without being returned through undelivered post.  Accordingly, in the absence of any further evidence to corroborate with his bare allegation, the Deputy Judge was not satisfied that the applicant had provided a good reason for his delay or any valid ground of appeal.  The Deputy Judge further considered that the applicant did not have any realistic prospect of success in his intended appeal and refused to extend time for his intended appeal.

The Present Application

12.  By a summons and supporting affirmation both filed on 29 April 2022, the applicant reapplied for extension of time to appeal against the Leave Decision on the basis that he failed to receive the Leave Decision in time and that the appeal was very important for his life safety.

13.  Contrary to the directions made by the Registrar of Civil Appeals on 29 April 2022, the applicant did not file any written submissions in support of his present reapplication.

Discussion

14.  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].

15.  We consider that the applicant’s delay of 24 days as substantial and he failed to give any reason, let alone good reason for his delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

16.  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 Leave Decision 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].

17.  Nowhere in the summons or supporting affirmation for the present application did the applicant identify any error in the Leave Decision with specific particulars.  As such, no viable ground of appeal was given by the applicant.  The intended appeal must fail on this basis alone.

18.  For the above reasons, 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 applicant’s summons filed on 29 April 2022 dismissed.