RE KHAN MOHAMMAD IRFAN

CAMP 85/2023, [2023] HKCA 1034

On Appeal From [2022] HKCFI 1955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 85 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1693 OF 2020)

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J U D G M E N T

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

1.  On 28 June 2022, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning the applicant’s non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time. He filed a summons in the Court of First Instance on 20 October 2022 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 9 February 2023. 

3.  On 24 February 2023, the applicant filed a summons in CAMP 85/2023 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal against the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 24 February 2023, the applicant lodged his written submissions in support of the Summons on 10 March 2023. 

5.  On 7 June 2023, the applicant filed a Request for Dismissal of Appeal requesting the dismissal of the “appeal” filed on 24 February 2023. We will treat it as a request to dismiss the Summons filed on that date. 

6.  As, under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing, we are of the view that it is appropriate to determine the present matter on paper without a hearing. 

Background

7.  The applicant is a national of India. He arrived in Hong Kong on 13 April 2012 as a visitor with permission to remain up to 27 April 2012. He overstayed and was arrested by police almost 5 years later on 7 January 2017. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim alleging that if refouled, he would be harmed or killed by supporters of the political parties Samajwadi Party (“SP”) and/or Bharatiya Janata Party (“BJP”) as he supported their rival All India Majlis-e-Ittehad-ul-Muslimeen party or All India Council for Union of Muslims (“AIMIM”).  The factual background of this case was succinctly summarised by the Judge at [2] – [3] of the JR Decision ([2022] HKCFI 1955).

8.  By a Notice of Decision dated 10 August 2018, the Director of Immigration (“the Director”) had decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 Risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

9.  The applicant filed a Notice of Appeal with the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) against the Director’s decision.  The applicant attended a hearing on 18 December 2019 and by its decision dated 14 July 2020, the appeal was dismissed. For the reasons set out at [22] – [30], the Board found that the applicant’s evidence was extremely vague, contradictory and lacking in any detail, and it found that he was not a witness of truth and no credence can be given to any of his claims. The applicant demonstrated minimal knowledge about AIMIM and the Board found that he could not possibly be involved in the party even at the lowest level. Even putting his claim at its highest, he only complained of one incident in 2012 but again, he was unable to provide any evidence of the central and key elements of his account. His failure to raise his claim upon his arrival in Hong Kong until after his arrest by the police almost 5 years later cast serious doubt if he was genuinely an asylum seeker.  For the aforesaid reasons, the Board dismissed the applicant’s non-refoulement claim on all applicable grounds. 

Application for leave to start judicial review

10.  On 20 August 2020, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s and the Board’s decisions. In his supporting affirmation, he claimed that there was no protection from the state or police unless bribes are being paid, and that internal relocation would not be available to him as he has no money or education.

11.  However, on 6 May 2022, the applicant filed an affirmation stating that he wants to cancel his case as he wants to go back home.

The JR Decision

12.  Be that as it may, the Judge considered the application made on 20 August 2020 on paper. After due consideration of the Board’s decision as well as the applicant’s request to withdraw his application, the Judge dismissed the application for reasons set out in [8] - [14] of the JR Decision:

“8. On 20 August 2020 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, and in his supporting affirmation of the same date he just repeated his claim as before that there is no protection from the state or police unless bribes are being paid and that internal relocation would not be available to him as he has no money or education but without putting forth any proper ground for his intended challenge, as his claim was essentially rejected by the Board on its adverse finding against his credibility that it did not find it necessary to consider either issues of state protection or internal relocation in its determination of his claim, of which the Board was perfectly entitled in the circumstances to do so. As such I do not find these complaints of the Applicant 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, nor do I find any basis for his intended application.

9. 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.

10. 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 18 – 30 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.  

11. The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. 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.

13. Furthermore, the Applicant recently in writing requested to withdraw his application as his problem in his home country no longer exists and that it is safe for him to return to India.

14. In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation that it is now safe for him to return to his home country, I accordingly dismiss his leave application.”

Application for extension of time to appeal the JR Decision

13.  Notwithstanding his affirmation filed on 6 May 2022 to cancel his case, the applicant then filed a summons in the Court of First Instance on 20 October 2022 for an extension of time to appeal the JR Decision. That was dismissed by the Judge on 9 February 2023. Hence, the Summons to this court. 

Discussion

14.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

15.  As for (1), the applicant was late by more than 3 months between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance. His delay was substantial.

16.  As for (2), the reasons for the delay, the applicant alleged at the hearing of his summons before the Judge that after the court had refused his leave application, he was ready to leave Hong Kong to return to his home country, but when he was later informed by his family that the threats from his enemies still existed, he changed his mind and wanted to proceed with his appeal, but by then he was already in detention and had to seek legal assistance with his intended appeal which was by then already out of time. There was no affirmation or documents in support of this allegation.

17.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. 

18.  In his written submissions, the applicant stated that he could not go back to India as he still faces risk to his life from the supporters of the rival political parties. 

19.  There is no prospect of success of the intended appeal. It was clear from the Board’s decision that the applicant’s case was rejected on the issue of credibility as his evidence was vague, inconsistent and lacking in any detail. His credibility was further undermined by his failure to raise his non-refoulement claim until his arrest by police almost 5 years after he arrived in Hong Kong. These were facts that the Board was entitled to find and there is no basis for a court to intervene.

20.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we agree that there is no prospect of success in the applicant’s intended application for judicial review and the leave application should be refused.

21.  Furthermore, the applicant has on 7 June 2023 requested the dismissal of his application.

22.  As the intended appeal is unarguable and without merits, irrespective of his request for dismissal of his application, we dismiss the applicant’s summons filed on 24 February 2023.