AKHTAR MUHAMMAD JAVED v. DIRECTOR OF IMMIGRATION

CAMP 263 /2021

[2022] HKCA 325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 263 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 265 OF 2017)

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.  On 8 February 2018, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 18 May 2021, the applicant’s application for extension of time to appeal against the said decision was dismissed by the judge as there is no reasonable prospect of success in the intended appeal[2].

3.  On 20 July 2021, the applicant filed the present summons with the Court of Appeal seeking to set aside an order dated 8 February 2018 and for leave to file a notice of appeal.

4.  This application should be treated as a renewed application for leave to appeal out of time against the decision dated 8 February 2018 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

5.  The applicant is a national of Pakistan. He is 51 years old. He was refused entry into Hong Kong on 15 July 2011, and lodged a torture claim on the same day, which subsequently became a non-refoulement claim. His claim was on the basis that if he returned to Pakistan, he would be harmed or killed by his creditor for failing to repay his loan, and by his family members and neighbours in his home village for having converted from Islam to Christianity.

The Director’s decisions

6.  By a Notice of Decision dated 30 July 2015, the Director of Immigration (“the Director”) rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

7.  By a Notice of Further Decision dated 2 December 2016, the Director rejected the applicant’s claim on BOR 2 risk[6].

The Board’s decision

8.  The applicant appealed against the Director’s decisions to the Board. He attended the hearings before the Board on 16 February 2016 and 6 March 2017. Having taken into account the applicant’s evidence, including a psychiatric report that was issued for the applicant by a doctor of the Department of Psychiatry of the University of Hong Kong, the Board concluded that he was “such an unreliable witness that no credence can be attached to any of the incidents he described.” It concluded that by reason of the lack of credibility alone, the applicant already failed to show there is any real risk or chance or substantial ground for believing that he will suffer the harm he claims to fear, or any harm warranting non-refoulement protection if he returns to Pakistan. Therefore, the Board dismissed the appeal on 31 March 2017.

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 1 June 2017 for leave to apply for judicial review against the decisions of the Director and the Board. In his supporting affirmation he simply stated that the decision of the adjudicator is flawed as he did not give any weight to the applicant’s claim. He stated that the adjudicator did not take into account the severity of the situation in Pakistan which was bad for religious minorities, and the persecution of converts was well documented.

The judge’s decision

10.  The judge considered there were simply no merits at all in the submissions of the applicant. The judge was of the view that the adjudicator was entitled to find the applicant an unreliable witness and that by reason of his lack of credibility, to conclude that the applicant has failed to show any real risk or chance or substantial grounds warranting non-refoulement protection if he returns to Pakistan. There was no error in law or procedural unfairness of the Director or the Board in concluding that internal relocation is available and reasonable in the applicant’s circumstances to return to live and work safely in Pakistan away from his home area. The judge was not satisfied that the applicant’s intended application for judicial review was reasonably arguable, and refused his leave application on 8 February 2018.

Grounds of intended appeal

11.  In his affirmation for this application, the applicant’s reason for the delay was lack of knowledge and insufficient resources. In his written submissions for the present application, he stated the following grounds of appeal in gist:

(1)  The Director and Board ignored many things related to his case;

(2)  Torture and death of innocent people are common under Pakistan police custody, and state protection is only offered to those who pay bribes;

(3)  He would be under threat from his enemies once he returns to Pakistan; and

(4)  Witnesses may disappear or be killed, so justice will be difficult to achieve in his home country.

Analysis and disposition

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 order was made on 8 February 2018. The applicant took out a summons for leave to appeal out of time in the court below on 22 December 2020. He was late by 2 years and 10 months exclusive of the court’s summer vacation during the period of August. The delay is very substantial.

14.  The applicant claimed that he was detained by the immigration authorities and had no opportunity to clarify his case, and that he was unaware of the rules regarding the appeal deadline. He also claimed he did not receive any correspondence from the Court in his affirmation filed in the court below. We do not accept his explanation for the very substantial delay. Ignorance of the rules cannot be a reason to excuse non-compliance, and the records showed that the judge’s decision of 8 February 2018 sent to his last reported address on the same day had not been returned through undelivered post.

15.  There being no acceptable explanation for the delay, the Court will only grant extension of time if his appeal has a real prospect of success[7].

16.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

17.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

18.  In the present application, the applicant does not have any reasonably arguable grounds to challenge the decision of the judge. He merely repeated his contentions that the Director and the Board were in error, which have been rejected by the judge, who has considered his complaints against the Director and the Board and provided detailed explanation for dismissing the leave application in his decision dated 8 February 2018. The applicant was found not to be a credible witness, and has repeatedly failed to provide further information or evidence when queries were presented to him.

19.  For the above reasons, the applicant failed to show that he has any prospect of success in his intended appeal. We therefore refuse to extend time to appeal against the judge’s decision of 8 February 2018 and dismiss the summons filed on 20 July 2021.