RE HUSSAIN ASHFAQ

CAMP 390/2021

[2022] HKCA 300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 390 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 791 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 22 April 2021[1] refusing to grant leave to apply for judicial review. The intended judicial review is directed against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 27 April 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 23 December 2016 rejecting the applicant’s non-refoulement claim.

2.  On 24 August 2021, the Judge refused to extend time for the applicant to appeal against his decision of 22 April 2021.[2]

Background

3.  The applicant is a Pakistani national born in 1975. He first came to Hong Kong in 1994 but was subsequently convicted of overstaying and removed to Pakistan in February 1996. He came to Hong Kong again twice under different identities but was deported in 1997 and 1999. He claims to have entered Hong Kong again, in March 2006, when he lodged an asylum claim with the office of the United Nations High Commissioner for Refugees in Hong Kong. His claim was refused in 2010. The applicant surrendered himself to the Immigration Department on 12 January 2015, and raised his current non-refoulement claim on 11 November 2015, which was later withdrawn but reinstated on 23 April 2016.

4.  The applicant claimed that he had supported and paid money to the Muttahida Quami Movement (MQM) Party for protection so that when the applicant’s garment shop was attacked by criminals called the Rehman dacoits in July 2005, MQM came to his rescue and killed some dacoits in the ensuing gun battle. When the police investigated the incident the applicant informed them that MQM associates had killed the dacoits. As a result, the applicant had received threats from both the surviving dacoits and MQM. The applicant claimed that if he returned to Pakistan, he would be harmed or even killed by MQM members or by the Rehman dacoits. The detailed factual background was set out at paragraphs 6 to 7.38 of the Director’s decision, and was summarized by the Judge at [2] to [6] of the Form CALL-1.

5.  By notice of decision dated 23 December 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The applicable grounds are BOR 3 risk,[3] persecution risk,[4] torture risk[5] and BOR 2 risk.[6]

6.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 11 April 2018, during which the applicant answered questions from the Board. The Board found that the applicant’s claim was vague and unsubstantiated, but was willing to attach some credence to his story, without going so far as to say it was probably true. The Board did not however believe that the applicant left Pakistan and came to Hong Kong in search of protection. Although the applicant claimed to have suffered threats and harassment, there was no evidence that the applicant had suffered any serious harm or severe physical or mental pain. Any risk of harm was attenuated due to the passage of time, as it had already been 12 years since the applicant left Pakistan. The Board found that there was no real risk of harm in the event of refoulement. The Board also found that even if there was a real risk of harm from the alleged quarters, the applicant could safely and reasonably relocate to a different part of Pakistan. There was nothing to suggest that his enemies had any influence outside his local area. In the result, therefore, the Board dismissed the applicant’s appeal on 27 April 2018 in relation to all applicable grounds.

The Judge’s decisions in the court below

7.  On 7 May 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review against the Board’s decision. He did not however set out any grounds for judicial review in his Form 86 or the accompanying affirmation.

8.  Following consideration of the documents only, on 22 April 2021 the Judge refused to grant leave to apply for judicial review, for reasons set out at [11] – [14] of the Form CALL-1 as follows:

“ 11. On 7 May 2018 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 merely attached a copy of the decision without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any procedural unfairness in his process before the Board or any error of law or irrationality in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12. 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.

13. 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 his 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.

14. 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.”

9.  The applicant did not appeal against the Judge’s decision within the 14 days prescribed by rules of court. On 24 May 2021, he filed a summons to seek an extension of time to appeal. He did not provide either in the summons or the supporting affirmation any explanation for the delay or any proposed grounds of appeal.

10.  Following a hearing on 10 August 2021 attended by the applicant, the Judge gave his decision on 24 August 2021 refusing to grant an extension of time to appeal, as he did not see any prospect of success in the intended appeal.

The renewed application before this Court

11.  On 15 September 2021, the applicant filed a summons seeking from this Court an extension of time to appeal against the Judge’s refusal to grant leave for judicial review. In his summons and supporting affirmation, the applicant explained that his appeal was late because he did not receive the court’s judgment, but he did not set out any proposed grounds of appeal.

12.  The applicant lodged his written submissions on 27 September 2021, in which he briefly referred to the factual background as well as the procedural history of this case, without raising any grounds of appeal or pointing out any specific errors said to have been made by the Judge.

13.  Having considered the available materials, we are of the view that it is appropriate to deal with the present application on the basis of the documents alone without an oral hearing.

Discussion

14.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

15.  The applicant applied in the Court of First Instance for an extension of time 18 days after the time for appeal had expired. The delay was not lengthy, and his explanation for the delay not wholly implausible. In the circumstances, we have proceeded to decide the present application on the basis of the merits of the intended appeal.

16.  In assessing the merit of the intended appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 judgment below, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

17.  In the present case, the Board rejected the applicant’s non-refoulement claim due to its finding there was no evidence that the applicant had suffered any serious harm or severe physical or mental pain. The Board also considered that the applicant’s enemies would be unlikely to have any interest in him after so many years. As such, the Board found that there was no real risk of harm in the event of refoulement. The Board also found that internal relocation could be safely and reasonably undertaken. On the facts and evidence of this case, such findings are within the province of the Board.

18.  The applicant has completely failed to raise any public law grounds for the purpose of his intended application for judicial review against the Board’s decision.

19.  He has also wholly failed to raise any grounds of appeal against the Judge’s decision or point to any possible error made by the Judge in his decision.

20.  As there was no reasonably arguable ground for judicial review, the Judge was right to refuse leave.

21.  For these reasons, we do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons of 15 September 2021 is accordingly dismissed.