RE REHMAN UBAID UR

CAMP 40/2024, [2024] HKCA 633

On Appeal from [2018] HKCFI 1154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 40 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 521 OF 2017)

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J U D G M E N T

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

1.  On 27 February 2024, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge Woodcock (“DHCJ Woodcock”)  dated 7 June 2018 ([2018] HKCFI 1154)  (“the Leave Decision”)  refusing leave to apply for judicial review. On 5 February 2024, Deputy High Court Judge KW Lung (“DHCJ Lung”)  refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2024] HKCFI 298)  (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 11 August 2017 (“the Board’s Decision”), dismissing the appeal against the decisions of the Director of Immigration (“the Director”)  respectively dated 11 September 2015 and 10 February 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decisions”).

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally by boat on 6 October 2013 and was arrested two days later.  On 17 October 2013, he raised a non-refoulement claim on the basis that he would be harmed or killed by his three paternal uncles and nine cousins if he returned to Pakistan because he had refused to transfer the ownership of land they wanted that he had inherited from his father.  Details of the applicant’s claim have been summarised by DHCJ Woodcock at [4] - [8] of the Leave Decision.

5.  By the Director’s Decisions, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decisions to the Board.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decisions.  The Board’s reasons for its decision were summarised by DHCJ Woodcock at [10] - [14] of the Leave Decision:

“10.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing. He correctly set out the law and key legal principles applicable to the grounds. He set out the applicant’s evidence and his analysis of it.  It would appear that he accepted the applicant’s evidence but found that even on his own facts the applicant was unable to make out a case for non-refoulement protection.

11.  As far as the persecution risk is concerned, the applicant’s disputes with his relatives is a private matter concerning family land inherited.  This dispute did not concern any Refugee Convention reason.  Despite the alleged political connections of his uncles, there is no suggestion that any State actors were involved in this dispute; his relatives were all acting in a personal capacity. The adjudicator found that the applicant was unable to establish that he had a well-founded fear he would be subjected to persecution for a Convention reason if refouled. His persecution risk claim failed.

12.  There was no suggestion from the applicant that his rights under BOR to would be violated; his BOR 2 risk claim failed.  The adjudicator considered whether he was at risk of torture or CIDTP under BOR 3. Even on the applicant’s own evidence, although he was attacked he said on numerous occasions, he only required medical treatment on one occasion in 2011 when he was treated for bruises and swellings at a private clinic.  Despite the number of attackers/relatives against one man and his allegation that they carried wooden sticks and were armed with pistols, they clearly did not intend to cause serious harm or kill the applicant on any occasion.  If they had such an intention, then they had had plenty of opportunity to inflict serious harm or injury on the applicant but did not do so.

13.  The adjudicator considered the tests applicable to this ground and found on the applicant’s own facts, that the ill-treatment did not and would not attain a minimum level of severity and there were no substantial grounds for believing the applicant would face a genuine and substantial risk of being subjected to torture or CIDTP if refouled which is why his BOR 3 risk claim failed.

14.  The adjudicator did consider the definition of torture as set out in section 37U(1)  of the Immigration Ordinance when he considered the applicant’s torture risk.  Even on the applicant’s own evidence, there is no suggestion that the incidents he described involved any State actor acting in an official capacity.  There is no evidence he is a target of the state.  The adjudicator found no evidence for believing he would be liable to torture if refouled; his torture risk claim failed.  The adjudicator did consider that the applicant could relocate internally without undue hardship if there was any risk; he gave his reasons why in his decision.  The adjudicator confirmed the decision of the Director.”

THE JUDGE’S DECISION

7.  On 16 August 2017, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  In essence, the applicant generally and vaguely complained that the Board had been procedurally unfair and irrational in failing to consider and correctly weigh the Country of Origin information and consider the evidence of his case.

8.  On 12 January 2018, the applicant attended the oral hearing before DHCJ Woodcock.  A Pushto interpreter was also present to provide language assistance.

9.  On 7 June 2018, DHCJ Woodcock refused to grant the applicant leave to apply for judicial review. Her reasons were stated at [15] - [22] of the Leave Decision:

“15. I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. He analysed the material, claim and evidence. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

16. There are eight grounds in this affirmation and all contain no particulars. Grounds 5, 6, 7 and 8 contain no particulars. As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars. Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement. These grounds have no merits.

17. In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin (‘COI’)  research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. There are no particulars provided but in any event, the adjudicator did not need to consider COI in depth because he found the applicant was not at risk. It was also unnecessary to assess State acquiescence or whether Pakistan had a consistent pattern of mass violation of human rights. These grounds are not arguable.

18. The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him. I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him. He made an election to give evidence. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal. At the oral hearing the applicant tried to answer questions about this complaint but ultimately agreed he had no complaints about the conduct of the oral hearing.

19. There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it on 10 February 2017 which was before the oral appeal hearing date of 4 May 2017.

20. There is a complaint the applicant answered all the questions honestly and is aggravated that his credibility was found questionable. This is misleading when the adjudicator made no finding as to the applicant’s credibility.

21. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

22.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14-day period.

11.  On 3 November 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was over five years and four months late with his intended appeal.

12.  On 5 February 2024, DHCJ Lung refused the applicant’s application, holding that the applicant failed to raise any valid reason to challenge the Board’s Decision and accordingly, there was no prospect of success in his intended appeal.

THIS APPLICATION

13.  By a summons and a supporting affirmation filed on 27 February 2024 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons, the applicant merely asked for an order that:

“▪ The Appellant be granted leave to appeal out of time the order dated 7^th day of June 2018 refusing the Appellant leave to apply for Judicial Review; and

▪  The Appellant be granted leave to advance a new sole ground of appeal.”

14.  In his supporting affirmation, the applicant stated:

“I am the Applicant herein. Leave me granted to me to appeal against the decision made by High Court Judge K.W. Lung on the 10^th November 2023. I would like to appeal out of time as I never received any correspondence from the High Court & and I was unaware of the rules regarding the 14-days’ time limit. I find myself unable to afford the services of a private lawyer to pursue an appeal. I am therefore left with no alternative but to humbly request the Court’s favorable consideration in allowing my appeal out of time and accept my explanation.” (sic)

15.  Contrary to the directions of the Registrar of Civil Appeals dated 27 February 2024, the applicant failed to lodge written submissions.

DISCUSSION

16.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

17.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702 at [19].

18.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

19.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

20.  At the outset, the applicant’s delay of over five years and four months is extremely substantial and inordinate.  It is plainly unacceptable for the applicant to merely assert his ignorance of the procedural requirements as the basis for the delay, which in any event, does not constitute a good reason for delay.  Accordingly, the applicant will have to demonstrate that his intended appeal has a realistic prospect of success.  In our view, there is none.

21.  The applicant’s allegations in the present application are all vague, bare and general in nature.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  He therefore fails to specifically identify any error in the Leave Decision.  Clearly, his assertions are not proper grounds of appeal.

22.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

23.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 27 February 2024 is dismissed.