RE AQEEL MUHAMMAD

CAMP 39/2020

[2021] HKCA 413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 39 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 660 OF 2017)

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J U D G M E N T

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

Introduction

1.  By the decision of 15 June 2018 (“the Decision”)[1], Campbell Moffat J (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decisions of the Torture Claims Appeal Board (“the Board”) dated 12 October 2016 and 1 September 2017.  In the Board’s decisions, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 13 January 2015 and 2 February 2017 rejecting the applicant’s non-refoulement claim.

2.  On 19 November 2018, the applicant took out a summons for an extension of time to appeal against the Decision.  On 14 March 2019, the Judge refused to grant leave for the applicant to appeal against the Decision (“the Leave Decision”)[2].

3.  By a summons dated 21 May 2020, the applicant sought leave from this Court to appeal against the Leave Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 16 June 2020, the applicant lodged his written submissions on 24 June 2020. 

5.  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 summons, the supporting affirmation and written submissions, 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 entered Hong Kong illegally on 5 March 2009 and was arrested by the police on 6 March 2009.  He was then referred to the Immigration Department for investigation and on 10 March 2009, he lodged his non-refoulement claim by way of written representation on the basis that if he were to return to Pakistan, he would be harmed or even killed by a group of college students known as the Jutt Group which was connected to the Pakistan Muslim League when the applicant belonged to a rival student group known as the Friends Group. The factual background was succinctly summarized by the Judge at the Decision at [4].

7.  By Notice of Decision of 13 January 2015 and Notice of Further Decision of 2 February 2017, the Director assessed the applicant’s claim on all applicable grounds and determined them against him.  The Director’s first decision covered the BOR 3 risk[3], the torture risk[4] and the persecution risk[5], and the Director’s further decision covered the BOR 2 risk[6] ground.

8.  The applicant lodged two appeals to the Board against the Director’s two decisions.  The Board dealt with the appeals in its respective decisions dated 12 October 2016 and 1 September 2017.  The Board found that the alleged incidents of assaults and fights involving members of the Jutt Group and the Friends Group were typically fights between boys of the same age group and the applicant’s fear of harm by the Jutt Group upon his return to Pakistan was totally unfounded especially given a long lapse of time since the events in 2008.  Further, internal relocation would be a viable option if the applicant still genuinely fears for his safety.  For the aforesaid reasons, the Board concluded that the applicant had failed to establish his case on all the applicable grounds. 

9.  On 22 September 2017, the applicant filed a Form 86 together with his supporting affirmation for leave to apply for judicial review of the Board’s decisions.  He did not provide any meaningful grounds for seeking relief and merely urged the court to let him stay in Hong Kong until his problem be resolved.

The Judge’s decisions

10.  The application was considered on papers and the Judge dismissed the application on 15 June 2018 after due consideration of the Director’s and Board’s decisions.  The reasons and findings were set out at [11] to [12] of the Decision:

“11. I have considered the papers, grounds and submissions carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

12.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

11.  The 14-day period for the applicant to appeal the Decision, as stipulated by Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), expired on 29 June 2018.  On 19 November 2018, the applicant filed a summons together with supporting affirmation to apply for leave to appeal out of time. 

12.  The summons was heard on 14 March 2019 and by the Leave Decision made on the same day, the Judge refused the application for leave to appeal the Decision out of time.  The applicant explained in his summons that he did not receive the letter and was only made aware of the Order when he attended the Immigration Department.  At the hearing, the applicant informed the Judge that he had moved just a few days after submitting his Form 86 and had thereafter moved several more times and could not remember where he lived at the time the Court handed down the Decision.  He also confirmed that his address stated on the summons was his current address and that he had failed to inform the Court of his change of address.  The Judge did not accept the applicant’s explanation as good reasons for the delay.  

13.  The Judge then considered the merit of the underlying application, and found that the applicant had failed to provide any ground of review and he made no complaint before the Judge against the Decision.  In the circumstances, the Judge did not see any prospect of success in his intended appeal and therefore, refused to grant an extension of time to appeal the Decision out of time.

The renewed application

14.  On 21 May 2020, the applicant filed a summons together with supporting affirmation seeking leave to appeal against the Leave Decision out of time.  Under Order 59 rule 2B(3) of the Rules of the High Court (Cap. 4A), the applicant may make a further application for leave to appeal to the Court of Appeal within 14 days from the date of the refusal of leave by the judge, which expired on 28 March 2019.  The applicant was late for about 14 months.  Under Order 59 rule 2B(6) of the Rules of the High Court (Cap. 4A), this Court may extend the time for making the application for leave to appeal. 

Legal principles

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: (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.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would examine if he has merit in the intended appeal: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

17.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see 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].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A).

Discussion

18.  The applicant was late for about 14 months in taking out the present summons and the delay was undue and substantial.  He claimed that the delay it was “due to lack of knowledge and insufficient sources.”  We do not accept the applicant’s explanation as good and satisfactory and ignorance is not an excuse.  The applicant may approach the Resource Centre for Unrepresented Litigants or the Immigration Department for assistance if he is determined to proceed with the appeal. 

19.  Further, the applicant was late for 4.5 months in taking out the summons for an extension of time to appeal against the Decision and we agree with the Judge that the applicant had failed to provide any good and valid reason for his delay. 

20.  Thus, the applicant is required to demonstrate that the intended appeal has real prospect of success, before leave of appeal is to be granted, see Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020.

21.  We therefore turn to the merit of the intended appeal.

22.  The applicant did not provide any draft or proposed grounds of appeal in his summons and supporting affirmation to challenge the Decision.  In his written submissions, he merely stated that his enemies threatened to kill him and are still looking for him.  He complained that the Pakistani police cannot protect him as they are corrupt and death and torture in police custody is common.  He did not have enough sources to protect himself from his powerful enemies and he would be tortured and killed if refouled.  He urged the court to let him stay in Hong Kong until his problem is solved.

23.  In our judgment, nothing mentioned in the applicant’s written submissions can constitute a valid ground of appeal.  As the applicant failed to put forward any grounds of appeal against the Decision, with the legal principles stated in [17] of this judgment, his intended appeal is bound to fail.

24.  Further, the applicant’s case was rejected by the Board as the alleged events of assaults that happened in 2008 were purely fights between boys out of grudge and was private in nature.  There was no state involvement and the applicant failed to establish that his life would be threatened upon his return to Pakistan.  The findings and conclusions were within the Board’s province and they were eminently reasonable.  We see no proper basis to intervene.

25.  We have also carefully reviewed the Decision and are satisfied that the Judge had examined the Board’s decisions carefully and that the applicant’s intended application for judicial review was rightly refused. 

26.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 21 May 2020 is dismissed accordingly.

27.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.

[1] [2018] HKCFI 1070

[2] [2019] HKCFI 716

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.