RE AHMED WAQAS

CAMP 487/2022, [2023] HKCA 1345

On intended appeal from [2022] HKCFI 1096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 487 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 318 OF 2019)

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J U D G M E N T

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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 14 April 2022 ([2022] HKCFI 1096) 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 36. He entered Hong Kong illegally and was arrested by the police on 21 November 2007. On 6 December 2007, he made a torture claim, which was processed as a non-refoulement claim upon the commencement of the unified screening mechanism in 2014. His claim is based on his fear of being harmed or killed by a person named Shahzad 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 first decision of the Director at [7]. We will not repeat them.

6.  By a decision dated 19 December 2014 and 10 February 2017, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds. The applicant appealed the decision to the Board. After an oral hearing held on 21 April 2015, the Board dismissed the appeal by its decision dated 28 October 2015.

7.  Subsequently by a further decision dated 10 February 2017, the Director further assessed the applicant’s claim under the BOR 2 risk[4] ground and decided against it.

8.  The applicant appealed the Director’s further decision to the Board. By its decision dated 18 January 2019, the Board dismissed the appeal. The Board considered that an oral hearing was not required because the Director’s further decision was based on the same facts as those underlying the first decision, as such fairness did not require an oral hearing nor would a hearing be likely to improve the applicant’s case. The Board referred to the previous decision on the appeal against the Director’s decision, which found there were no risks to the applicant. Noting that no new facts were involved, the Board found there was no substantial risk that Shahzad would kill the applicant if he were refouled to Pakistan. The Board further considered that even if there was such a risk, it could be avoided by internal relocation.

9.  On 4 February 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. Other than asserting that his life was not safe in his country, he did not put forward any ground for seeking relief.

10.  The Judge considered the application on paper. By a Form CALL-1 dated 14 April 2022, he refused to give leave to apply for judicial review for the reasons set out in [10] to [13] as follows:

“10. On 4 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely repeated his claim as before that his life is not safe in his home country, 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 either of its decisions 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 fact is that even based on his own case at the highest, his claim simply does not engage the BOR2 ground, and that in any event it has been established by both the Director and the Board in their earlier decisions that the risk of harm in his 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 under any of the applicable grounds: 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 under all the applicable grounds.”

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.

12.  By a summons filed on 9 June 2022, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge heard the application at a hearing held on 5 October 2022. By his decision handed down on 19 October 2022 ([2022] HKCFI 3124), the Judge refused the application.

13.  On 22 November 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.  For the intended appeal, the applicant was late by six weeks, which is a significant delay. The applicant stated in the supporting affirmation that he did not receive the Court letter on time. We note from the court record that because the applicant had by letter dated 17 October 2021 informed the court that he was serving a prison sentence, the Form CALL-1 was sent to Pik Uk Prison in addition to an address in Tin Heng Estate, Tin Shui Wai, which was the address stated in the Form 86 as well as in the present summons and supporting affirmation. The Form CALL-1 sent to the prison was returned undelivered on 31 May 2022 for the reason that the applicant had left the prison. As for the copy sent to the Tin Heng Estate, it had not been returned by the Post Office. We further note that the applicant had explained to the Judge at the hearing on 5 October 2022 that the delay was because he did not know how to appeal and had to seek help from others. We agree with the Judge that given the decision was sent to the applicant’s last reported address and despite allowing time for him to seek help, the substantial delay was not satisfactorily explained. In the circumstances, the applicant must demonstrate that his intended appeal enjoys a real prospect of success.

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].

17.  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.

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

19.  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.

20.  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. Accordingly, we dismiss the applicant’s summons filed on 22 November 2022.