RE HANIF MUHAMMAD

CAMP 154/2022

[2023] HKCA 142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 154 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1808 OF 2018)

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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 Bruno Chan (“the Judge”) dated 1 September 2021[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation to support his application.  Despite directions given by the Registrar of Civil Appeals, he has not lodged any written submission.  

3.  Under Order 59 rule 2A(5)(a) 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, 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 44.  He entered Hong Kong illegally and was arrested by the police on 29 November 2007.  On 11 December 2007, he made a torture claim[2], which was rejected by the Director on 31 December 2010.  He had since failed to answer recognizance.  On 15 March 2014, he was re-arrested by the police.  On 19 March 2014, he raised a non-refoulement claim.  His claim is based on his fear of being harmed or killed by a person called Agha Ali Haider (“Agha”) due to a dispute over a plot of land owned by the applicant’s father. The details of the applicant’s claim were set out in the decision of the Director at [11].  We will not repeat them.     

6.  By his decision dated 30 November 2017, the Director rejected the applicant’s claim having regard to the 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 19 April 2018, during which the applicant gave evidence and answered questions put by the Board.  By its decision dated 7 August 2018, the Board dismissed the appeal.  For the reasons set out in [38] to [47] of the decision, the Board found the applicant’s evidence was not credible as his evidence about the land dispute to be vague and limited and there were material inconsistencies and discrepancies between the information given by the applicant to the Director and his evidence given to the Board.  The Board did not accept there was any land dispute, the applicant was a target of Agha or he and his family had been threatened or attacked.  The Board considered there was no real risk that the applicant would face harm, torture or ill-treatment upon his return to Pakistan. The Board concluded that the applicant’s claim was not made out on any of the applicable grounds.

8.  On 3 September 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  Other than complaining in the affirmation that the decision disregarded his dangerous situation, he did not put forward any ground for seeking relief.   

9.  The Judge considered the application on paper.  By a Form CALL-1 dated 1 September 2021, he refused to give leave to apply for judicial review for the reasons set out in [9] to [13] as follows:

“9. On 3 September 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 just stated that he rejects the decision as it disregarded his dangerous situation without putting forth 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 irrationality 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.

10. 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.

11. 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 36 – 50 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.

12. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  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.”

10.  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. 

11.  By a summons filed on 12 October 2021, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application at a hearing held on 21 April 2021.  By his decision handed down on 5 May 2021[6], the Judge refused the application. 

12.  On 16 May 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.  This renewed application is seriously out of time as it was made more than a year after the Judge’s decision when under Order 59 rule 2B(3) of the Rules of the High Court, a renewed application to the Court of Appeal must be made within 14 days from the Judge’s refusal of leave to appeal. 

13.  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. 

14.  For the intended appeal, the applicant was late by almost four weeks, which is a significant delay.  In the application made to the Judge, the applicant claimed he had to seek help and by the time he able to do so, the time for appeal had expired. The Judge accepted he might need help but found the serious delay was not justified.  In the present application, the applicant stated in the summons and affirmation that he did not get the court decision, but he did not elaborate on which decision he was referring to, whether it was the Form CALL-1 dated 1 September 2022 or the Judge’s decision dated 5 May 2021.  But irrespective of which decision the applicant was referring to, we note from the court record that in each case, the decision (together with the order) was sent on the day it was handed down to the applicant’s address provided in the Form 86 and the summons, and they had not been returned by the Post Office.  We are thus not satisfied that the applicant had satisfactorily explained the delay in making the appeal.  Nor had he satisfactorily explained the huge delay in making the present application.  In the circumstances, the applicant must demonstrate that his intended appeal enjoys a real prospect of success.    

15.  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].

16.  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 applicant did not set out any grounds for his application in either the summons or the supporting affirmation.  The applicant has simply failed to identify any basis on which the appellate court may disturb the Judge’s decision.

18.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge 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.           

19.  As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  

20.  Accordingly, we dismiss the applicant’s summons filed on 16 May 2022. 

[1] [2021] HKCFI 2576

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[6] [2022] HKCFI 1191