RE IQBAL MUHAMMAD

CACV 331/2023, [2024] HKCA 218

On Appeal From [2023] HKCFI 2594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 331 OF 2023

(ON APPEAL FROM HCAL NO 1484 OF 2019)

____________________

____________________

____________________

JUDGMENT

____________________

Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal against the decision made by Deputy High Court Judge Bruno Chan (“Judge”) on 10 October 2023[1], refusing to extend time for the applicant to apply for leave to apply for judicial review and refusing to grant leave to the applicant to apply for judicial review (“JR Decision”) for the reasons set out in the “Form CALL-1” of the same date (“Form CALL-1”).

2.  The applicant had, by a Form 86 filed out of time on 31 May 2019 under HCAL 1484/2019 (“Form 86”), sought leave to apply for judicial review (“JR Application”) of the decision of the Torture Claims Appeal Board (“Board”) given on 25 August 2017 (“Board’s 2^nd Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) given on 25 January 2017 by a Notice of Further Decision (“Director’s 2^nd Decision”).

Background to the applicant’s non-refoulement claim

3.  The applicant, a national of Pakistan, entered Hong Kong illegally on 1 April 2008.  He was arrested by the police on 13 September 2008.  On 15 September 2008, he lodged a torture claim, which was initially processed under the Unified Screening Mechanism as a claim for non-refoulement protection (“NRF Claim”) from the persecution risk[2] and the BOR 3 risk[3] in addition to the torture risk^[4].  

4.  The NRF Claim was founded on a fear by the applicant of being harmed or killed by his cousins (who were sons of the applicant’s paternal uncle) due to a dispute concerning the distribution of land.  Among other incidents, he claimed that he was at one point threatened by one of his cousins (named Mumtaz) with a firearm.  The details of the NRF Claim have been summarised by the Judge at [2] to [5] of the Form CALL-1.

Screening of the NRF Claim

5.  By a Notice of Decision dated 30 December 2014 (“Director’s 1^st Decision”), the Director decided against the applicant’s NRF Claim based on the said 3 applicable grounds for non-refoulement protection namely: the torture risk, the persecution risk and the BOR 3 risk.

6.  The applicant appealed against the Director’s 1^st Decision to the Board.  The Board conducted a rehearing of the NRF Claim (based on the torture, persecution and BOR 3 risks) on 7 October 2015, where the applicant appeared in person but elected not to give evidence.

7.  By its decision dated 2 December 2016 (“Board’s 1^st Decision”), the Board dismissed the appeal against the Director’s 1^st Decision on the said 3 applicable grounds for non-refoulement protection.  In particular, the Board took the view that there was no basis to suggest that the applicant would face a risk of serious harm should he be refouled, as even according to his own account of events he had not suffered any physical harm or injuries during the various confrontations with his cousins.  In any event, the Board found as a matter of fact that the applicant’s evidence, on which material aspects of the NRF Claim were based, was not credible.  Further still, the Board found that state protection and suitable options of internal relocation within Pakistan were available to the applicant in order to minimise the risk of harm, if any.

8.  Subsequently, after an invitation by the Director to the applicant by letter dated 10 January 2017 to submit additional facts pertaining to an assessment of the NRF Claim on the last ground for non-refoulement protection (i.e. from BOR 2 risk) was made (to which the applicant did not respond), the NRF Claim on the ground of the BOR 2 risk was determined on paper by the Director.  By the Director’s 2^nd Decision, the NRF Claim resting on the BOR 2 risk was also dismissed.

9.  The applicant appealed against the Director’s 2^nd Decision to the Board.  Notwithstanding that the appeal was lodged out of time, the Board in its discretion allowed the late filing of the notice of appeal.  The Board proceeded to determine the appeal on paper.  By its decision dated 25 August 2017 (i.e. the Board’s 2^nd Decision), the Board dismissed the applicant’s appeal against the Director’s 2^nd Decision. 

The JR Decision

10.  By the Form 86, the applicant sought to judicially review the Board’s 2^nd Decision (but not the Board’s 1^st Decision), without setting out any grounds for review.

11.  In his supporting affirmation, the applicant requested that his application for leave to apply for judicial review be determined at an oral hearing.  

12.  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 the following reasons in refusing to extend time for the applicant to apply for leave to apply for judicial review at [12] to [20] of the Form CALL-1:

12. On 31 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, 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 does not agree with the Board’s decision as all his statements are true but without putting forward any proper ground for his intended challenge.

13. By then the Applicant was however 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.

14. As the last day of the 3 month-period for him to file his Form 86 fell on 25 November 2017, the Applicant was therefore more than 1 ½ years late with his 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.

15. In the Applicant’s case, a delay of more than 1 ½ years must be considered as extremely substantial and inordinate, for which he failed to 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 am unable to see any good or valid reason for his such serious delay.

16. As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended application.  As such, 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, and given the factual basis of even his own case that the Applicant’s claim simply did not engage the BOR 2 ground on its limited scope, I do not find any reasonably arguable basis for his intended challenge or any merits in his intended application.

17. 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.

18. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their earlier decisions that the risk of harm in his 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. 

19. 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 on BOR 2 ground as well as all the other applicable grounds.

20. 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.”

Grounds for appeal

13.  In the Notice of Appeal filed on 20 October 2023, the applicant merely stated that “the High Court did not give [him] justice” and that he wished to appeal. 

14.  In his written submissions dated 3 November 2023, the applicant repeated the factual background to his claim and his reasons for his fear of returning to Pakistan as well as his disagreement with the “High Court judgment”.  Notably, the applicant also complained that no oral hearing was fixed by the Court for the determination of the substantive leave application.

Disregard of the applicant’s right to an oral hearing

15.  As already noted above, in the supporting affirmation to the Form 86, the applicant requested that an oral hearing be fixed for the determination of the JR Application.

16.  In this regard, Order 53 rule 3(3) of the Rules of the High Court (Cap 4A) (“Rule”) provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the applicant.” (emphasis added)

17.  Despite the applicant’s said request for an oral hearing, according to the court’s records, the JR Application had not been listed or fixed for hearing and the Judge dealt with the JR Application on paper.

18.  Applying this court’s earlier decisions in Re Hossain Anowar [2023] HKCA 1361 at [10]-[11]; Re Mondal Sumitra Rani [2023] HKCA 1063 at [19]-[21]; and Re Pervin Jahanara [2023] HKCA 1064 at [20], given the clear wording of the Rule and the applicant’s said express request for an oral hearing, it was not open for the Judge, nor could he invoke the discretionary powers of the court, to determine the JR Application on paper. 

19.  It is therefore arguable at the outset that the Judge had erred in law and in fact in disposing of the JR Application without an oral hearing. 

20.  It therefore follows that in exercising his discretion to refuse leave to the applicant to apply for judicial review without an oral hearing, the Judge had arguably reached the JR Decision on an erroneous basis.

21.  In the premises, notwithstanding that the applicant had consented to the disposal of the present appeal without an oral hearing, by reason of the aforesaid special circumstances of this case, this court on its own motion directed that a hearing be fixed on 16 January 2024 in order that the applicant be afforded an opportunity to make oral submissions to this court in support of the present appeal, as well as to make submissions which he would have made to the Judge in the court below had a hearing for the determination of the JR Application been fixed pursuant to his request.

22.  To further make up for the problematic basis on which the JR Decision was reached by the Judge, this court will, in addition to its determination of the present appeal, exercise afresh the court’s discretion with respect to the JR Application by its own examination and scrutiny of the Board’s 2^nd Decision to determine whether leave to apply for judicial review of such decision should have been granted to the applicant by the Judge.

No oral submission by the applicant

23.  We heard the appeal on 16 January 2024.  The applicant appeared in person at the hearing, and with the assistance of an interpreter, stated that he would like to live in Hong Kong for a longer period of time, but otherwise had no further submissions to add to the matters already stated in the documents filed with the court.

Discussion

24.  As stated above, it was arguable that in the present circumstances the Judge had erred in law and fact in determining the applicant’s application for leave to apply for judicial review without an oral hearing.  We have therefore considered and decided to exercise the Judge’s discretion in respect of the applicant’s JR Application afresh.  

25.  Notwithstanding the lack of an oral hearing before the Judge, the applicant was in any event afforded an opportunity to make submissions to this court at the hearing of the appeal on 16 January 2024.

26.  For the following reasons, we are of the view that the present appeal falls to be dismissed by reason that it is wholly lacking in merits.

27.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163. 

28.  The Judge considered the decisions of the Director and the Board and found no basis for judicial interference. In our view, he was clearly correct to do so.

29.  In any event, the applicant had not condescended to any particulars, in the Form 86 or otherwise, as to the basis on which the Board could be said to have acted unlawfully or procedurally unfairly in reaching its 2^nd 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. 

30.  Save for the apparent procedural error by the Judge in not granting an oral hearing to the applicant (which we have dealt with above), 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.  We have also subjected the Board’s 2^nd Decision to anxious scrutiny and have found no reasonable basis for intervention.

31.  In exercising afresh the court’s discretion, we are of the firm view that the applicant had failed to satisfy the threshold required for leave to apply for judicial review.  Due to its lack of merits, we would have refused to grant leave for the applicant to apply for judicial review.  The JR Application was rightly dismissed.

32.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.