RE HUSSAIN BASHRAT

CAMP 154/2021

[2022] HKCA 403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 154 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1350 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 9 July 2020, DHCJ Bruno Chan (“the Judge”) refused to give the applicant leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“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. The deadline was therefore 23 July 2020.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 21 October 2020 for extension of time to appeal (which was late by about 3 months).  That summons was dismissed by the Judge on 20 April 2021. 

3.  On 11 May 2021, the applicant filed his summons in CAMP 154/2021 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 10 June 2021, the applicant should lodge with the court his written submissions in support of the Summons on or before 24 June 2021.  He failed to do so.  The Registrar further directed that in the event the applicant fails to lodge his written submissions, he shall be deemed to have abandoned his right to rely on written submissions, and the application will be disposed of on paper on available 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 who entered Hong Kong illegally on 14 March 2008 and was arrested by police on 8 September 2008.  On 11 September 2008, he raised a torture claim later taken as a non-refoulement claim[1] on the basis that if he returned to Pakistan, he would be harmed or killed by a local leader of the Sunni religious/political group Sipah-e-Sahaba Pakistan (“SIPA”) over certain religious disputes.  The factual background of this case was succinctly summarised by the Judge at [2] – [7] of the JR Decision ([2020] HKCFI 1432).

7.  By a Notice of Decision dated 26 July 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[2], the BOR 3 risk[3], the torture risk[4] and the persecution risk[5].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 26 April 2018.  By its decision dated 29 June 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out in [51] to [60], the Board accepted that the applicant belongs to the Shia sect, and that his brother was killed in sectarian violence by a leader of the local SIPA called Khalid in 2003 – 2004; and it was also accepted that the applicant had a subjective fear of harm from Khalid and his followers.  However, the Board found that state protection is available as shown by the fact that Khalid was arrested by the police, and tried and sentenced to jail.  Relevant Country of origin information (“COI”) suggested that the Pakistani authorities have put in place operations targeting sectarian violence, and groups like SIPA and its members have been caught, prosecuted and imprisoned.  The Board further considered that the applicant may safely relocate and establish a new life in another city such as in Rawalpindi as other members of his family have done, and they have remained safe and unharmed after relocation.  In light of the aforesaid, the Board considered that there is no real risk of harm upon his return to Pakistan, and his non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 11 July 2018, the applicant filed a Form No. 86 to apply for leave to judicially review 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 he cannot go back to his home country as his life would still be in danger, and asked that he be allowed to remain in Hong Kong until his problem back home is solved.

The JR Decision

10.  The applicant attended an oral hearing on 28 November 2019.  After due consideration of the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [13] - [15] of the JR Decision:

“13.  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.

14.  The fact is 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.

15.  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 was late in filing a notice of appeal against the JR Decision.  He filed a summons in the Court of First Instance on 21 October 2020 for extension of time to appeal. That was dismissed by the Judge on 20 April 2021.  Hence, the Summons to this court. 

Discussion

12.  In considering whether to extend time for appealing, 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).  As for (1), the applicant was late by about 3 months between the JR Decision and the summons filed in the Court of First Instance.  His delay was significant. 

13.  As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he was “late for apply due to lack of knowledge and insufficient sources”.  The Judge took that to mean that he was not aware of the 14-day rule to file his appeal, and that he was without resources to obtain legal advice or assistance.  The court records showed that the JR Decision was sent to the applicant’s last reported address (which is the same address as that he provided in his summons for time extension dated 21 October 2020) without being returned through the post.  Thus, the Judge was not satisfied that the applicant has provided any good reason for his serious delay. We agree with the Judge’s decision.

14.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant’s grounds of review were duly considered by the Judge.  In his application for extension of time before the Judge, he did not raise any proper ground of appeal against the JR Decision.  It is plainly right for the Judge to conclude that there is no realistic prospect of success in the intended appeal and to refuse leave. 

15.  In his summons and supporting affirmation for extension of time before this Court, he also failed to provide any ground to reverse the JR Decision.  He merely repeated his reason for delay that he did not have the knowledge and resources to file a notice of appeal.

16.  It is clear from the Board’s decision that the applicant’s claim was rejected on the ground that he failed to substantiate his subjective fear of harm, and the Board had rightly pointed out that reasonable state protection is available, and he may safely relocate to other parts of Pakistan as other members of his family had done.  It was perfectly open to the Board to reach its factual findings and conclusions, and the court would only intervene if there were valid public law grounds.  We do not see any in this case.  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.

17.  As the intended appeal is unarguable, it would be futile to extend time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 11 May 2021.