RE ZAHEER HAIDAR

CAMP 97/2023, [2024] HKCA 594

On appeal from [2022] HKCFI 2240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 97 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 1031/2019)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ To (“the Judge”) dated 26 July 2022 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 8 April 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 23 June 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 29 November 2014, and was arrested by the police on 2 December 2014.  Thereafter, he lodged a non-refoulement claim by way of a written signification dated 5 December 2014.

3.  The applicant’s claim was based on a fear of being harmed or killed by Sunni Muslims.  The details of the applicant’s claim have been summarised by the Judge at [6] to [11] of his decision (“the CALL-1 Form”)[1].

4.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing held on 27 September 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board found that due to the inconsistencies and discrepancies in his evidence, the applicant was not a credible witness and was thus unable to make out the material facts on which his claim of alleged fear of harm was based.

The Judge’s decision

6.  The applicant filed a Form 86 on 16 April 2019 seeking to judicially review the Board’s Decision, without setting out any grounds for review.

7.  In his supporting affirmation, the applicant simply exhibited a copy of the Board’s Decision, and stated that he would “get killed” if he was sent back to his country and that his life would be in danger.

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused the applicant leave to apply for judicial review.  The Judge gave the following reasons in refusing leave at [15] to [19] of the CALL‑1 Form:

“15.     The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].  Thus, in the absence of specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

16.  The Applicant did not put forward any grounds in his Form 86.  In his supporting affirmation, he reiterated that the Decision was unreasonable and unfair and his life is in danger in Pakistan.  But he gave no particulars of the unreasonableness and unfairness alleged.  He had been invited by the Court via its letter dated 22 March 2022 to advise the Court of his first language, contact number and to file submissions.  He did not respond.  The letter was sent by post to his address as stated in his Form 86 filed on 16 April 2019.  It has not been returned through the post.  He had never informed the court of any change of address.  There is nothing to suggest that he had not received the letter or had moved.  

Discussion

17.  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.  Apart from a general and un-particularized complaint about unreasonableness and unfairness, the essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country, which, in effect, is a challenge of the Board’s finding of fact that he would not face any real harm or risk if returned to Pakistan.  

18.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Board rejected his evidence and found that he had failed to discharge the burden of proving the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. It also found in the alternative that even if his evidence were accepted, the risk which the Applicant would face would be localised and he could avoid that risk by relocating to other parts of Pakistan.  According to credible COI, Sunnis and Shiites co-exist peacefully in most parts of Pakistan.  This are finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere except where such finding involved errors of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

19.  For the above reasons, leave to apply for judicial review was refused.”

The present application for extension of time to appeal

9.  The applicant’s last known address at the time of the Judge’s decision was at the No. 15 Pitt Street, Yau Ma Tei (“the Address”).

10.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the Address on 26 July 2022, and was not returned undelivered.  

11.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 26 July 2022.

12.  The applicant thereafter took out a summons in the Court of First Instance on 26 September 2022 seeking extension of time to appeal, in which his address was also stated to be the Address.  In the summons and in his supporting affirmation filed on the same date, he merely stated that he had no means to instruct a private lawyer.

13.  The applicant’s application to appeal out of time was dismissed by the Judge on 2 March 2023[6].

14.  By a summons filed on 6 March 2023, the applicant renewed his application for extension of time to appeal before this court. In the summons and his supporting affirmation, the applicant merely asked this court to give him “one more chance”, without providing any explanation as to the delay nor his intended grounds of appeal.

15.  In his written submissions lodged on 20 March 2023, the applicant repeated the procedural history of his claim and the alleged dangers he may face should he be refouled.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

17.  As noted above, the Judge’s decision was sent to the last known address of the applicant, i.e. at the Address, but was not returned undelivered.  It may therefore be readily inferred that the applicant had knowledge of the Judge’s decision within the period which he was permitted to appeal.

18.  In any event, the applicant has proffered no reason or explanation for the delay in bringing the intended appeal, nor has he explained when or how he had come to learn of the Judge’s decision.

19.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.  We have nonetheless proceeded to consider the merits of the intended appeal.

20.  In any event, the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

21.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

23.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 6 March 2023 is accordingly dismissed.