RE GULL WASEEM

CAMP 238/2022; [2023] HKCA 800

On appeal from [2022] HKCFI 401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 238 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 550 OF 2019)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge To (“the Judge”) dated 7 February 2022[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation to support his application and lodged his written submissions pursuant to the directions given by the Registrar of Civil Appeals.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the papers filed in the application and the applicant’s written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Pakistan aged 50. He entered Hong Kong illegally and was arrested by the police on 16 September 2008. On 20 September 2008, he raised a torture claim, which he subsequently withdrew. He was repatriated to Pakistan on 2 April 2010. He later again entered Hong Kong illegally and on 15 February 2016 surrendered to the Immigration Department. He raised a non-refoulement claim based on fear of being harmed or killed by members of the Pakistan Muslim League (Nawaz) (“PMLN”) because of his affiliation with an opposing party, the Pakistan Tehreek-e-Insaf party (“PTI”). The details of the applicant’s claim were set out in the decision of the Director at [7] and summarised by the Judge at [6] to [14] of the Form CALL-1. We will not repeat them.

6.  By his decision dated 28 September 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds.

7.  The applicant appealed the Director’s decision to the Board. The Board heard the appeal at an oral hearing held on 5 October 2018, during which the applicant gave evidence and answered questions put by the Board. By its decision dated 20 December 2018, the Board dismissed the appeal.

8.  In gist, the Board considered the applicant’s case inherently improbable as he was not even a PTI member. The Board also did not find the applicant’s account truthful, particularly regarding the assaults and threats by PMLN members. The Board further considered that even on the applicant’s case, (1) the assaults and injuries occasioned to him did not amount to severe pain and suffering for the purpose of the torture risk ground, nor did they attain a minimum level of severity for satisfying the requirements of the BOR 3 risk ground; and (2) there was no reasonable ground to believe that he would be in danger of being tortured or otherwise seriously harmed, or being unlawfully deprived of his life, or would be tortured, subject to cruel, inhuman, degrading treatment or punishment, or would be persecuted. The Board also found that state protection and internal relocation alternatives are reasonably available which would negate or reduce any risks that the applicant might face if refouled. The Board therefore concluded that the applicant’s claim was not made out on any of the applicable ground.

9.  On 26 February 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. The applicant did not provide any ground for seeking relief.

10.  The Judge dealt with the application on paper. By a Form CALL-1 dated 7 February 2022, he refused to give leave to apply for judicial review for the reasons set out in [22] to [26] as follows:

“22. In his affirmation filed in support of his application, the Applicant said he is not satisfied with the Decision of the Board and want to apply for judicial review. He exhibited the Director’s Notice and the Decision of the Board, but he did not put forward any specific grounds in support of his intended application for judicial review. He is obviously seeking to challenge the Board’s conclusion and finding of fact.

23. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to Pakistan. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Pakistan and that in any event state protection and internal relocation are viable options to prevent or avoid the risk.

24. The Court was satisfied that the Board had correctly set out the four applicable grounds under the USM for claiming non-refoulement protection, had properly referred to and correctly applied the applicable legal principles, including the standard of proof and burden of proof, and quoted relevant precedents in support. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice. It correctly identified the factual and legal issues involved in the claims. The Applicant’s claims are founded on the two assaults, the threats made during the assaults and later in the hospital during the Applicant’s hospitalisation. The Board had carefully weighed the evidence and assessed the Applicant’s credibility, but found against him. The Board found he had not told the whole truth. This is a finding of fact solely within the province of the Board which the Board was entitled to make. As the Applicant bears the burden of prove of his claims, such a finding is fatal. For this reason alone, the Applicant had failed to discharge the burden of proving his claim under any of the four applicable grounds under the USM.

25. Nevertheless, the Board took a step further and assessed the Applicant’s claims on the basis of his assertions. Even taking his case at the highest, for reasons as summarized above the Board was not satisfied that the harm and injuries allegedly suffered by the Applicant could entitle him to protection under any of the four applicable grounds. The Board had been utterly fair and reasonable.

26. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board’s conclusion was utterly without fault. There were no errors of law, procedural unfairness, unreasonableness or irrationality in its Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational. The Applicant’s claim was not reasonably arguable. There was no realistic prospect of success.”

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. The 14-day period ended on 21 February 2022.

12.  By a summons filed on 4 March 2022, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper. By his decision handed down on 10 May 2022[6], he refused the application as he was of the view that the applicant’s intended appeal has no prospect of success and that to allow the applicant to proceed with his unmeritorious appeal would be prejudicial to public administration.

13.  On 11 July 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.

14.  In considering whether to extend time for appealing against the refusal of 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.

15.  The applicant was late by eleven days. He explained that the delay was due to his lack of knowledge and resources. We agree with the Judge that it is not a very substantial delay. As with the Judge, we would focus on the merits of the intended appeal.

16.  In assessing the merits of the intended appeal, we 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]. 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. 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.

17.  The content of the applicant’s summons and affirmation is identical to those filed in the court below. They merely sought to explain the delay, but did not provide any ground for the intended appeal.

18.  In his written submissions, the applicant repeatedly asserted that he would be in danger if refouled to Pakistan. He also asserted that he would not be able to have justice in his country as it is corrupt and his enemy is politically powerful. He asked to be allowed to remain in Hong Kong for a longer time until after his problem at home was resolved.

19.  What was put forward by the applicant does not amount to viable grounds of appeal. Importantly, he has failed to point to any error in the Judge’s reasons and refusal to give leave for judicial review. There is no proper basis on which this Court may disturb the Judge’s decision.

20.  We have separately considered the Board’s decision. We also do not discern any viable ground to disturb the Board’s decision. We agree that the intended judicial review has no prospect of success and the Judge was correct in refusing to give leave to apply for judicial review.

21.  As the applicant’s intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 11 July 2022.