RE ZUBAIR MUHAMMAD

CAMP 366/2022

[2023] HKCA 420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 366 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 63/2022)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”)  dated 25 March 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 29 October 2021 (“the Board’s Decision”)  dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 24 September 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 13 February 2016 and was arrested by the police on the same day.  On 17 February 2016, he raised a non-refoulement claim.

3.  The applicant’s claim was based on a fear of being harmed or killed by local villagers due to a private dispute. The details of the applicant’s claim have been summarised by the Judge at [2] to [5] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 24 September 2018, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 26 August 2021, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board found that on the evidence there was no real risk of harm to the applicant should he return to Pakistan, and that in any event suitable options of internal relocation were available to him.

The Judge’s decision

6.  The applicant filed a Form 86 on 17 January 2022 purportedly seeking to judicially review the Director’s and the Board’s Decisions (he however cited the date of only the Board’s Decision as the judgment in respect of which relief was sought), without setting out any grounds.

7.  In his supporting affirmation, the applicant set out his grounds of review, which have been summarised by the Judge at [10] of the CALL-1 Form as follows:

“(1)  that the Director and the Adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim as being unreasonable and unfair in failing to recognize that the right to life must be protected by criminal law and from extra-judicial killings which the Applicant may face if deported back to his home country;

(2)  that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3)  that the Director failed to appreciate or give proper weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(4)  that the Director failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies as well as politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5)  that the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give enough weight to such evidence and ruled otherwise against the Applicant’s case which is a clear case of unfair attitude shown by the Director which in itself is enough to render the decision void; and

(6)  that the Director failed to attain high standards of fairness required by the Wednesbury test in failing to recognize that the corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem which various human rights organizations have compiled reports on the matter which stated testament to the Applicant’s assertions that the decision should be considered unreasonable in the scope of public law.”

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave detailed reasons in refusing leave to apply for judicial review at [11] to [16] of the CALL-1 Form:

“11.  These are however all just broad and vague assertions of the Applicant 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 Director or the Adjudicator had erred in their decisions, 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 how did the Adjudicator fail to give the Applicant sufficient time or opportunity to present his relevant evidence for his claim or appeal, or how did the Board fail to apply high standards of fairness in assessing his claim, or what relevancy would extra-judicial killings or torture be to the Applicant’s claim which was even on his own case a private local dispute arising from a drinking incident without any official involvement.

12.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant or with any relevancy to his case, nor did he attend the hearing of his application without any explanation. As such I do not find any of them reasonably arguable 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 see any basis for his intended application either.

13.  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.

14.  In the Applicant’s case, the fact is that it has been 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.

15.  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.

16.  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 present application for extension of time to appeal

9.  The applicant stated in his Form 86 that his address of service at the time was at Pik Uk Prison.  On 24 February 2022, the Immigration Department informed the court that the applicant’s updated address was at 239-243 Castle Peak Road, Yuen Long (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 25 March 2022, and were not returned undelivered.

10.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 25 March 2022.

11.  The applicant thereafter took out a summons in the Court of First Instance on 21 April 2022 seeking extension of time to appeal, in which his address was stated to be the Address.  He claimed that he was out of time for his appeal because “Hong Kong High Court will be closed about COVID situation”.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 20 September 2022[6].

13.  By a summons filed on 22 September 2022, the applicant renewed his application for an extension of time to appeal before this court, wherein, as well as in his supporting affirmation, he merely asked this court to “[save his] life” and stated that his application had been refused by the Judge.

14.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court.  In the circumstances, he is deemed to have abandoned his right to rely on written submissions.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

16.  As noted above, the Judge’s Decision was sent to the last known address of the applicant at the time (which was the Address)  and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.

17.  Even if the applicant had moved, it would be incumbent upon him to update the court of his correspondence address promptly, and he must bear the consequences of his failure to do so. 

18.  As to the applicant’s explanation that his intended appeal was delayed by reason of the court’s general adjournment of proceedings (“GAP”), we note that the GAP took place from 7 March to 11 April 2022, with court business (including the registry)  resuming on 12 April 2022.  However, the application for extension of time was not taken out in the court below until 9 days later, on 21 April 2022.  There is also no explanation on the part of the applicant as to how and when he had come to learn of the Judge’s decision dated 25 March 2022.  

19.  In the circumstances, we consider that the applicant has failed to provide any reasonable explanation for the delay in lodging his intended appeal.  

20.  We have however nonetheless proceeded to consider the merits of the intended appeal.

21.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to the basis on which the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

22.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

23.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.  

24.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 22 September 2022 is accordingly dismissed.