RE MUHAMMAD IMRAN

CAMP 259 /2019

[2020] HKCA 252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 259 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 616 OF 2018)

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J U D G M E N T

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

1.  This is a renewed application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan on 13 June 2019. By his decision, the judge refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1].

2.  On 14 October 2019, the judge refused to grant leave to the applicant to appeal against his said decision out of time as he considered that the intended appeal does not have any prospect of success^[2].

3.  The applicant filed this renewed application for leave to appeal with the Court of Appeal on 16 October 2019.

4.  He is a national of Pakistan and is 48 years old.  He entered Hong Kong illegally on 7 January 2007 and was arrested by the police on 22 May 2007.  He raised a torture claim on 18 September 2007 which was rejected by the Director on 27 July 2012.  His appeal was rejected by the adjudicator of the Petition Team of the Security Bureau on 31 August 2012.  He raised a non-refoulement claim on 5 March 2014.  He claimed that he would be harmed or killed by three Sunni men for having witnessed their bombing of a Shia mosque if he is to be returned to Pakistan.  

5.  He applied for leave to apply for judicial review against the decisions of the Director and the adjudicator.  On 17 February 2015, the Court ordered that the decisions be quashed and his torture claim be remitted to the Director for fresh determination.  His claim was considered under the unified screening mechanism. 

The Director’s decisions

6.  By a Notice of Decision dated 18 March 2016, the Director rejected the applicant’s non-refoulement claim on the grounds including torture risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

7.  By a Notice of Further Decision dated 27 March 2017, the Director rejected the applicant’s claim in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk^[6].

The Board’s decision

8.  The Board heard the applicant’s appeal on 20 April 2017.  It considered that the applicant had not been tortured, no government officials were involved, state protection would have been available and internal relocation is a viable option in Pakistan.  According to the Board’s assessment, there is no evidence that the applicant may be subjected to BOR 2 risk; the ill-treatment had not attained the minimum level of severity as prescribed under the requirements; the ill-treatment he feared was not well-founded and was not on account of his race, nationality, or membership of a particular social group or political opinion.  Hence, the appeal was dismissed on 23 January 2018.

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 11 April 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  He only stated in his affirmation that he was not satisfied and did not understand the decision.  He did not provide any specific grounds for his intended judicial review in the Form 86 or his affirmation. 

The judge’s decision

10.  The judge held that there was no error of law or procedural unfairness in the decisions of the Director and the Board, and both the Director and the Board had applied high standards of fairness in their consideration and assessment of the claim.  The judge considered that the applicant’s intended application for judicial review does not have any prospect of success and refused his leave application on 13 June 2019. 

The proposed grounds of appeal

11.  The contentions in the written submission of the applicant may be summarized as follows:

(1)  He was not satisfied with all the decisions regarding his case because they would lead his life towards more danger.  The decision makers ignored some real facts which are related to his case.

(2)  The authorities in his country always back up people who have power and political backing.

(3)  His enemies are still looking for him and keep warning him that they would kill him when they see him.  If he returns to his country, he may be tortured or killed by his enemies.  He hopes to stay in Hong Kong until his problem is solved.

(4)  He cannot survive in front of his enemies because he does not have enough resources to protect himself in his country. Even the police cannot protect him from them.  His enemies have a lot of manpower and strong political support.  Even if the police arrest the culprits sometimes, they can bribe the police.

(5)  Death and torture of innocent persons in police custody are common in his country.

Analysis

12.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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.

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The judge’s order was made on 13 June 2019.  The applicant took out summons in the court below on 8 August 2019 to apply for leave to appeal out of time.  He was late by 5 weeks, exclusive of the summer vacation of the Court, and his delay is considered substantial.

14.  In his affirmation filed on 16 October 2019, the applicant stated that he was late for applying for an appeal because his decision letter was misplaced.  At the hearing of his summons of 8 August before the judge on 27 August 2019, the applicant explained that he did not receive the judge’s decision and that there was something wrong with his mail box, and that he only became aware of the decision later when he reported to the Immigration Department.

15.  The decision of the judge refusing the original leave application was sent to the applicant’s address, which was stated in his Form 86, on 13 June 2019.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439 at §15). 

16.  The applicant’s delay was inexcusable.  In these circumstances, he must show a real prospect of success on merits (Secretary for Justice v. Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 HKC 125). 

17.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

18.  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 Country of Origin Information materials and risk of harm, state protection and viability of internal relocation is 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.

19.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

20.  In the present application, the applicant failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  His submissions are just bare assertions.   He did not provide any viable evidential basis to refute the findings of the Board.

21.  For the above reasons, he does not have any prospect of success in the intended appeal.  We therefore dismiss the summons he filed on 16 October 2019.

[1] [2019] HKCFI 806

[2] [2019] HKCFI 2428

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

[4] 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.

[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.

[6] This refers to the risk of being arbitrarily deprived of his life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.