RE MUZAFAR IQBAL

CAMP 233/2022, [2023] HKCA 1044

On Appeal From [2020] HKCFI 2204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 233 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 655 OF 2018)

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J U D G M E N T

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

1.  On 2 September 2020, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim and dismissed his leave application (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap. 4A) (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 15 October 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 11 May 2022.

3.  On 6 July 2022, the applicant filed his summons in CAMP 233/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the decision made by the Judge on 11 May 2022. This summons is treated as a renewed application for leave to appeal out of time against the JR Decision, see: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] to [8].

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 6 July 2022, the applicant should lodge his written submissions in support of the Summons on or before 20 July 2022.  However, he failed to do so.  The Registrar further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 23 March 2009 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment alleging that if refouled, he would be harmed or even killed by supporters of a rival political party Pakistan Muslim League (N) (“PML(N)”) as he was a supporter of Pakistan Muslim League (Q) (“PML(Q)”).  After his torture claim was rejected on 2 September 2013, he then raised a non-refoulement claim for protection on the same basis.  The factual background of this case was succinctly summarised by the Judge at [2] – [6] of the JR Decision ([2020] HKCFI 2204).

7.  By a Notice of Decision dated 29 June 2016 and a Notice of Further Decision dated 13 July 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2] and the persecution risk[3].

8.  The applicant appealed the Director’s decisions to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and attended an oral hearing on 8 January 2018.  By its decision dated 29 March 2018, the Board dismissed the appeal.  For the reasons set out at [29] to [48], the Board found the applicant’s evidence was vague, evasive and inconsistent (eg which part of his body was injured, and why he did not report the attack to police), and the Board did not find him a truthful and reliable witness.  Although it was accepted that there were conflicts between rival political parties and there might be some verbal disputes between the applicant as a supporter of PML(Q) and supporters of PML(N), there was no evidence suggesting that the PML(N) supporters had specifically targeted the applicant with threats to kill him.  In any event, internal relocation is a viable option for the applicant to move safely to other areas away from his home district without any risk of being located by his perceived enemies [61].  For the aforesaid reasons, the applicant’s non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 17 April 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  He did not advance any ground for seeking relief in his Form or in his supporting affirmation save for saying that his life would still be in danger in his home country if refouled.

The JR Decision

10.  The applicant did not request an oral hearing and the Judge disposed of his application on paper.  After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review with reasons set out in [10] - [14] of the JR Decision:

“10. On 17 April 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 repeated his claim that his life would still be in danger in his home country 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 error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11. 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.

12. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 26 – 37 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s 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.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 15 October 2021 for an extension of time to appeal. That was dismissed by the Judge on 11 May 2022.  Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

13.  As for (1), the applicant was late by 13 months between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial and inordinate.

14.  As for (2), the reasons for the delay, the applicant claimed in his supporting affirmation that he did not receive the JR Decision but he did not provide any details or evidence in support or explain how he eventually came to learn about the JR Decision.  He also failed to attend the hearing of his summons without explanation.  The court file showed that the JR Decision was sent to the applicant at his last reported address without being returned as undeliverable mail.  In the absence of any details or evidence to corroborate his bare assertion, there is no good reason for his substantial and inordinate delay.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any valid grounds of appeal to challenge the Board’s decision nor did he pinpoint any error in JR Decision.  The Judge had rightly found that there was no real prospect of success in the applicant’s intended appeal and refused his application.

16.  It is clear from the Board’s decision that the applicant’s case was rejected on the issue of credibility as his evidence was evasive and inconsistent and the Board did not find any evidence or reasons why the PML(N) supporters would specifically target the applicant who was just a low-ranking supporter of PML(Q). In any event, internal relocation is a viable option.  These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds.  We see none in this case.

17.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

18.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 6 July 2022.