RE MOHAMMED ZUBAIR

CAMP 125/2019

[2019] HKCA 1222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 125 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 548 OF 2017)

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J U D G M E N T

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

Introduction

1.  By a decision dated 1 February 2019 (“the Decision”), Deputy High Court Judge Bruno Chan (“The Judge”) refused to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decisions of the Director of Immigration (“the Director”) dated 29 March 2016 and 17 March 2017 and the decision of the Torture Claims Appeal Board (“The Board”) dated 15 June 2017. 

2.  On 5 June 2019, the Judge refused to grant an extension of time to the applicant to appeal against the Decision (“the Leave Decision”).

3.  The applicant now renews the leave application to this Court by way of a summons dated 14 June 2019. Pursuant to the directions of the Registrar of Civil Appeals given on 18 June 2019, the applicant filed his written submissions on 3 July 2019. The Registrar further directed that this Court will decide whether to determine the application on paper. As it is appropriate to do so, this application shall be determined on paper accordingly.

Background

4.  The applicant is a national of Pakistan. He first entered into Hong Kong illegally on 14 November 2003 and was arrested by the police on 23 February 2004. A Removal Order was issued against the applicant on 5 March 2004 and he was removed to Pakistan on 15 March 2004. On 21 May 2009, he entered into Hong Kong again illegally and was arrested by the police on 25 June 2012. On 28 June 2012, he raised his non-refoulement claim by way of written representation.  The applicant’s claim was based on his alleged fear that if he were to return to Pakistan, he would be harmed or even killed by the members of Pakistan Muslim League –N (“PMLN”) as he was a supporter of an opposing political party namely Pakistan Peoples Party (“PPP”).

5.  By a Notice of Decision dated 29 March 2016, the Director decided against the applicant’s claim. The Director’s decision covered the BOR 3 risk, the persecution risk, and the torture risk. By a Notice of Further Decision dated 17 March 2017, the Director rejected the applicant’s claim on the BOR 2 risk.

6.  The applicant appealed to the Board. After the hearing on 3 April and 11 April 2017, the Board dismissed the appeal on 15 June 2017 (“the Board’s Decision”).  The Board found that the applicant had failed to prove the primary facts of his case and his account of events was unreasonable and incredible.  The applicant had no physical signs of having been subjected to serious violence apart from his alleged finger injury. Further, the applicant had sneaked into Hong Kong twice in 2003 and 2009 respectively, but he only made his non-refoulement claim in 2012 after his arrest by the police. The applicant’s act did not reflect that he was a genuine asylum seeker. The Board found that it was unnecessary to consider the issue of internal relocation alternatives as there was no reasonable likelihood of the applicant being harmed or persecuted upon his refoulement to Pakistan. For the aforesaid reasons, the Board rejected the applicant’s claim on all applicable grounds.

The Judge’s Decision

7.  On 24 August 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision. He did not provide any ground of relief in the Form nor in his supporting affirmation.

8.  On 1 February 2019, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review. After summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [14] – [17] for his refusal to grant leave:

“ 14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, that the proper occasion for an applicant to present and articulate such a claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them that the court will not usurp their roles as primary decision makers, and that in the absence of any legal error being identified by the applicant, judicial review is not an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

15. In the present case the applicant’s claim was doubted by both the Director and the adjudicator for the Board, in particularly the latter which rejected his claim wholly on his credibility after hearing him in evidence in two hearings and for the detailed analysis and reasons set out in the decision, and in the absence of any legal or factual error being identified by the applicant in his application now before me, I fail to see any reason or justification interfering with the evaluations by the Director or the adjudicator as primary decision makers of the applicant’s claim.

16. Nevertheless, having proceeded to consider their decisions 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 the part of the Director or the Board to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

17. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

9.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 15 February 2019).  By the summons filed on 22 February 2019, he sought an extension of time for him to appeal against the Decision.  However, he did not provide any reason for his delay. At the hearing for his leave application before the Judge, he explained that he did not receive any letter from the court within time as he lived in some very remote village in Yuen Long where the mail service was unreliable.

10.  By the Leave Decision, the Judge refused to grant an extension of time.  Despite the Judge accepted the applicant’s explanation for his short delay, the Judge found no merit in the underlying application. The applicant failed to provide any grounds of his intended challenge in Form 86 nor any grounds of appeal against the Decision.  He had conceded at the hearing that he was unable to find any errors in the Decision. He told the Judge that he had a family in Hong Kong and he simply did not want to leave Hong Kong. As such, the Judge found no prospect of success in the applicant’s intended appeal and dismissed his summons accordingly.

The Renewed Application

11.  By the summons dated 14 June 2019, the applicant renewed the matter before us. In the summons and the supporting affirmation filed on the same day, the applicant did not provide any grounds of appeal. In the applicant’s written submissions, he advanced the following:

(1) It was unfair that he was not heard by the Judge and he would request an oral hearing by this Court.

(2) There was a lack of legal representation especially for his claim on BOR 2 risk.

(3) There was a lack of language assistance and the problem exists up to date. He had no understanding of the process or the reasons why his case was rejected. 

Legal Principles

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.  Even if the court does not accept that the applicant’s explanation for the delay is reasonable, the court should still examine if he has merit in the intended appeal, see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

14.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. For the purpose of this application, the salient principles are as follows:

(1) The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3) 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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

15.  We agree with the Judge that notwithstanding the excusable short delay in seeking leave to appeal against the Decision, there is no merit in the underlying application.  We have reviewed the Board’s decision and are satisfied that the Board had duly considered the applicant’s case in which it had set out the applicant’s evidence in details and then gave its reasons why the applicant’s account of events was not believed. It was open for the Board to come to its findings and conclusion and we find no errors of law or procedural unfairness or irrationality in the decision of the Board.  Further, we are not prepared to allow the grounds of appeal on lack of legal representation and language assistance as they are new grounds that were not advanced or canvassed at the lower court. Lastly, there is no suggestion that if there were any factual issues that needed to be clarified before the Judge that an oral hearing should be called for. The applicant had not even provided any grounds of relief /appeal in Form 86 nor in his application for an extension of time to appeal against the Decision. In our judgment, none of grounds stated in his written submissions can constitute viable grounds of appeal to challenge the Judge’s decisions. 

16.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 14 June 2019 is dismissed accordingly.

17.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.