RE MUSHTAQ SHAHID

CAMP 49/2023, [2024] HKCA 647

On appeal from [2022] HKCFI 2553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 49 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2151 OF 2018)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Bruno Chan (“the Judge”)  dated 17 August 2022[1] refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  The applicant’s intended judicial review is against the decision of the Torture Claim Appeals Board (“the Board”)  dated 15 December 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”)  dated 29 March 2016 and 10 July 2017 rejecting his non-refoulement claim.

3.  The applicant has filed a supporting affirmation and also lodged a written submission to support his application. 

4.  Under Order 59 rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

5.  The applicant is a national of Pakistan, now aged 45. He was born in Jattlan Village, Mirpur, Azad Kashmir, Pakistan. He is married with two sons. His family and parents live in Pakistan. He entered Hong Kong illegally and was arrested by the police on 17 January 2013 for taking up unauthorised employment in Hong Kong. On 19 March 2013, he was convicted and sentenced to 15 months’ imprisonment. By two written significations dated 15 May 2013 and 18 June 2013, the applicant raised a non-refoulement claim. He lodged his non-refoulment claim form on 8 October 2015.  

6.  The applicant’s claim is based on fear of being harmed or killed by his paternal uncle (Nazir Ahmed)  and his cousin Mohammad Ishfaq due to a land dispute between his father and the uncle. In gist, the applicant claimed to have been attacked and injured by Ahmed, Ishfaq and Ishfaq’s friends in an incident in 2011 during which he and his father attempted in vain to reclaim the half-share of the land inherited from his grandfather.  He claimed that despite the presence of police officers at the scene, the attack did not stop, and Ahmed and Ishfaq made death threats to the applicant. Fearing for his safety, the applicant decided to relocate to Rawalpindi to stay with his friend.  He eventually left Pakistan in late 2012 for Guangzhou and sneaked into Hong Kong via Shenzhen.  The details of the claim are set out at [6] of the Director’s decision dated 29 March 2016 and at [32] to [49] of the Board’s decision.

7.  By a decision dated 29 March 2016, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3] and persecution risk[4]. By a further decision dated 10 July 2017, the Director rejected the applicant’s claim based on BOR 2 risk[5] grounds. 

8.  The applicant appealed the Director’s decisions to the Board.  The hearing took place on 12 September 2017 and 3 October 2017, during which the applicant gave evidence and answered questions put by the Board. 

9.  By a decision given on 15 December 2017, the Board dismissed the appeal. The Board found significant inconsistencies in the applicant’s various accounts of the attack, including the fact that the applicant made no reference to the presence of police officers when describing the incident before the Board, which cast doubt on the veracity of his claim given that it was the only occasion where he claimed to have been assaulted. The Board, having regard to the nature of the dispute, the level of harm inflicted on the applicant and the available country of origin information (“COI”), found that the applicant has failed to establish a well-founded fear that he will be subjected to persecution for a convention reason, and that even if his account of past experiences were accepted by the Board, they do not amount to ill-treatment for the purposes of BOR 3 or torture under the assessment of torture risk.  As for the BOR 2 risk ground, there was no suggestion that his BOR 2 rights would be violated. The Board further found that internal relocation option was viable in light of the localised nature of the risk. The Board concluded that the applicant failed to establish his entitlement to non-refoulement protection under all the applicable grounds.

10.  On 8 October 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  Under Order 53 rule 4(1)  of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  The applicant’s Form 86 was about 7 months late.  The applicant provided no ground for seeking relief or any explanation for the delay.  He only stated in his affirmation that the Immigration Department has disregarded the dangerous situation in his home country. The applicant did not request for any oral hearing for his application. In response to the court’s letter dated 9 November 2020, the applicant submitted medical documents relating to his follow-up consultation at Pok Oi Hospital for his diabetes mellitus condition.

11.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 17 August 2022, the Judge refused to extend the time for the applicant to apply for judicial review and dismissed his application for leave to apply for judicial review.  He gave his reasons at [10] to [17] as follows:

“10. On 8 October 2018 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 or in his supporting affirmation of the same date in which he just stated that he rejects the decision as the Board disregarded his dangerous situation in his home country but without providing any details or particulars as to how it did so or any proper ground for his intended challenge, nor did he request any oral hearing for his application.

11. By then the Applicant was also seriously out of time with his application, 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 15 March 2018, he was therefore almost 7 months late with his present 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: AW v Director of Immigration [2016] 2 HKC 393.

13. In the Applicant’s case, a delay of almost 7 months must be considered as very substantial and inordinate, but for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good or valid reason for his such serious delay.

14. As for the merits of his intended application, as noted above the Applicant has also failed to put forth any proper or reasonably arguable basis for his intended challenge, 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 merits in his intended application either.

15. The fact is that it has been correctly established by both the Director and the Board in their respective decisions 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, 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 their decisions or any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s non-refoulement 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.”

12.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  The 14-day period for the applicant to appeal expired on 14 September 2022[6].

13.  By a summons filed on 20 September 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  In his affirmation, the applicant explained that he could not find the decision in his mail box.  At the hearing before the Judge, he further explained that he received the decision in the mail only in mid-September 2022 when by then there was insufficient time for him to file his intended appeal.  By his decision handed down on 21 December 2022[7], the Judge refused the application.   

14.  On 7 February 2023, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.

15.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted. 

16.  The applicant was 6 days late when he filed the 20 September 2022 summons, which is not substantial.  In his supporting affirmation, he reiterated that he did not receive the court’s letter and was therefore late in his appeal.  Considering that the delay is not substantial, we would focus on the merits of the intended appeal which is more important.

17.  In considering the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the primary decision maker afresh as if it is a fresh application for judicial review.

18.  The applicant did not provide any ground for the intended appeal.  He only stated in his affirmation that he did not agree with the decision of the court.  In his written submissions, he stated that he came to Hong Kong because he is an enemy of the corrupt administration in Pakistan, which is fraught with unrest and self-interested politicians.

19.  For the following reasons, we are of the view that the matters put forward by the applicant do not constitute viable grounds of appeal:

(1)  The Court will only interfere with the Board’s assessment of risk and its decision if it can be demonstrated that the decision is erroneous in law or irrational or there is procedural irregularity or unfairness.  However, in his Form 86 and supporting affirmation, the applicant had not set out any ground for seeking relief or made any challenge to the reasons and findings of the Board.  Further, the Judge, having scrutinised the Board’s decision, concluded that there was no proper basis to disturb it.  In the circumstances the Judge’s conclusion that the intended judicial review has no reasonable prospect of success cannot be faulted.   

(2)  We have separately considered the Board’s decision.  Like the Judge, we do not discern any legal errors, irrationality or procedural irregularities.  We see no proper basis for disturbing the Board’s rejection of the applicant’s factual case and his findings that internal relocation options are not unreasonable in the circumstances.

20.  For the above reasons, the applicant’s intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.  

21.  As the applicant’s intended appeal against has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 7 February 2023.