RE MUHAMMAD ZAFRAN

CAMP 23/2024, [2024] HKCA 631

On Appeal from [2023] HKCFI 2798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 23 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1257 OF 2020)

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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.  On 1 February 2024, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 31 October 2023 ([2023] HKCFI 2798)  (“the Leave Decision”)  refusing leave to apply for judicial review. On 25 January 2024, the Judge refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2024] HKCFI 210)  (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 28 May 2020, dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 21 November 2018 rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to 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 5 November 2015 and was arrested by police on 6 November 2015.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a farm owner in his home village over some monetary or compensation dispute between them due to some fire accident for which the owner blamed the applicant and demanded compensation from him.  Details of the applicant’s claim have been summarised by the Judge at [1] - [4] of the Leave Decision.

5.  By a Notice of Decision dated 21 November 2018 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decision to the Board.  On 28 May 2020, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at [8] of the Leave Decision:

“8.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from the farm owner that caused him to leave his country to come to Hong Kong for protection, and that in any event even if such risk is real that it arose from some private monetary or compensation dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”

7.  On 22 June 2020, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  The applicant relied on the following grounds as summarised by the Judge at [9] of the Leave Decision:

“(1)  That the Board failed to appreciate or give proper weight or importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(2)  That the Board failed to recognize the fact that the Applicant was tortured at the behest of or in full collusion of the police and the state law enforcement agencies as well as the politicians due to direct result of misconduct of police officials;

(3)  That the Board failed to take the argument into account that the state would be rendered liable to the Applicant by cause of the state and its officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in Pakistan would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s claim;

(5)  That the Board referred to relevant COI which suited its pre-conceived conclusion which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(6)  That the Board failed to attain high standard of fairness required by the Wednesbury test in the decision with the argument that corruption and incompetency of the administration in Pakistan is still a very serious problem as various human rights organizations had compiled reports on the matter which stated testament to the Applicant’s assertions that the Board’s decision should be considered unreasonable in the scope of public law;

(7)  That the Adjudicator failed to make sufficient enquiry before finalizing the determination of the Applicant’s claim; and

(8)  That the Adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence to support his non-refoulement claim as well as his appeal.”

THE JUDGE’S DECISION

8.  On 10 October 2023, the applicant attended the oral hearing before the Judge.  An Urdu interpreter was also present to provide language assistance.

9.  On 31 October 2023, the Judge refused to grant the applicant leave to apply for judicial review.  His reasons were stated at [10] - [14] of the Leave Decision:

“10. These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board or the Adjudicator fail to make proper or sufficient enquiry or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy is State Acquiescence to the Applicant’s case which even on his own case at the highest was a private monetary or compensation dispute between him and the farm owner in his home village due to some fire accident without any state or official involvement, or in what way was the Applicant not given any opportunity to provide relevant evidence in support of his claim when he was given 2 oral hearings during which he was able to make his full and proper representation of his case together with supporting documents to the Board with the assistance of an interpreter and without any problem. As such, and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge or any merits in his intended application.

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 vDirector of Immigration [2018] HKCA 524.

12. In the Applicant’s case, 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 if real 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.

13. 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.

14.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

10.  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.

11.  On 16 November 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was two days late with his intended appeal.

12.  On 25 January 2024, the Judge refused the applicant’s application, holding that the applicant failed to identify any error in the decision being clearly and properly and accordingly, there was no prospect of success in his intended appeal.

THIS APPLICATION

13.  By a summons and a supporting affirmation filed on 1 February 2024 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons, the applicant merely stated:

“THE HIGH COURT DID NOT GRANT MY LEAVE. I WAS NOT HAPPY AND I HAD SOME OBJECTION. I HAD NO CHANCE TO APPEAL. AS I DID NOT GET THE HIGH COURT JUDGEMENT. I WAS LATE. I REQUEST TO EXTEND TIME FOR APPEAL AGAINST THE JUDGE BRUNO CHAN ON 31 OCT 2023.” (sic)

14.  In his supporting affirmation, the applicant stated:

“I WANT TO APPEAL AGAINST THE DECISION OF THE HIGH COURT JUDGEMENT. VERY SORRY TO SAY I FAILED TO APPEAL AS I DID NOT GET THE HIGH COURT JUDGEMENT ATTACHED ‘A’. PLEASE GRANT MY LEAVE.” (sic)

15.  Pursuant to the directions of the Registrar of Civil Appeals dated 1 February 2024, the applicant lodged his written submissions on 15 February 2024.  In those submissions, he reiterated the factual basis and procedural history of his non-refoulement claim and alleged that the court did not give him any oral hearing and did not consider his arguments.

DISCUSSION

16.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

17.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

18.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

19.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

20.  Although the applicant’s delay of two days is not significant, for present purpose, we will focus on the merits of his application.

21.  In our view, the present application is devoid of merit.  Contrary to his assertions, the applicant had in fact attended and made submissions for his application for leave to apply for judicial review and his later application for extension of time to appeal before the Judge.  Accordingly, he had had ample opportunities to advance his case both orally and through written submissions before the Judge.  The Judge had also considered his arguments in detail in his decisions.  There is therefore no basis in his complaints.

22.  More importantly, the applicant’s allegations in the present application are all vague, bare and general in nature.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  He fails to specifically identify any error in the Leave Decision.  Clearly, his assertions are not proper grounds of appeal.

23.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

24.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 1 February 2024 is dismissed.