RE HUSSAIN MAZHAR

CAMP 371/2022, [2024] HKCA 905

On Appeal From [2021] HKCA 796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 371 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1976 OF 2020)

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J U D G M E N T

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

1.  By a summons filed on 23 September 2022, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 25 March 2021 refusing to grant the applicant leave to apply for judicial review ([2021] HKCFI 796)  (“the Leave Decision”). By a subsequent judgment dated 5 May 2022, the Deputy Judge also refused the applicant’s application for extension of time to appeal against the Leave Decision ([2022] HKCFI 1193)  (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 29 September 2020 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 29 June 2020 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the papers, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Pakistan.  He entered Hong Kong on 4 May 2018 on the strength of a dependent visa and was allowed to remain until 4 May 2019.  He was arrested by the police on 26 December 2018 for indecent assault and was convicted and sentenced to nine months’ imprisonment on 27 June 2019.  He was discharged from prison and referred to the Immigration Department on 24 December 2019.  On 5 May 2020, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his uncle Mian Khalid Mehmood (“Mian”)  or the people loyal to Mian because he refused to marry Mian’s daughter and also refused to help Mian in a local election[1]. Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] - [4] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[2], BOR2 risk[3], BOR3 risk[4], and persecution risk[5].

6.  The applicant then appealed against the Director’s Decision to the Board.  He attended an oral hearing before the Board on 16 September 2020 and gave evidence.  On 29 September 2020, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.  The Board found that there was no, or no reliable evidence of any threats from Mian or the people loyal to Mian to harm or kill the applicant if refouled[6]. The Board also found that the applicant’s problems with Mian was private in nature without any official involvement[7]. Having considered the Country of Origin information (“COI”), the Board considered that both state protection and internal relocation would be available to him[8]. Accordingly, the Board considered that the applicant failed to substantiate his case on all the applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 30 September 2020, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  The grounds of challenge advanced by the applicant in his Form 86 were as follows:

“Decision(s)  made in respect of my Non-refuolement Claims states all the details of my claim. I would be able to provide a copy of the same to the court upon my release from the Immigration detention. I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement Claims. The decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.

I humbly ask this Honourable Court to grant leave to have the Decision judicially reviewed.”

8.  In his supporting affirmation, he repeated that he was not able to submit documents until his release from the detention by the Immigration Department.

9.  On 7 January 2021, the applicant filed another affirmation requesting to withdraw his application and stating that he was satisfied with the decisions of the Director and the Board.  The Deputy Judge nonetheless proceeded to consider the applicant’s application on paper as he did not request any oral hearing.

10.  By the Leave Decision, the Deputy Judge acknowledged the applicant’s confirmation of withdrawal of his application for leave to apply for judicial review and dismissed his application on merits.  His reasons were set out in detail at [10] - [14] of the Leave Decision:

“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 fact is that it has been established by both the Director and the Board in their respective decision 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: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. 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.

13. Furthermore, the Applicant on 7 January 2021 filed an affirmation requesting to withdraw his application as he is satisfied with the decisions of the Director and the Board.

14.  In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that he no longer wish to challenge the decisions of the Director or the Board, I accordingly dismiss his leave application.”

The EOT Decision

11.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

12.  On 11 October 2021, the applicant filed a summons (“the EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over six months late for his intended appeal.  In the EOT Summons, he only craved for leave to advance “a new sole ground of appeal” without stating what the intended ground was.  In his supporting affirmation, the applicant requested to re-open his leave application and claimed that his life was still in danger in his home country.

13.  The Deputy Judge heard the EOT Summons on 21 April 2022.  An Urdu interpreter was present to provide language assistance.  During the hearing of the EOT Summons, the applicant explained that he was once sick with a fever and that due to the COVID-19 pandemic, he did not leave his home, causing the filing of his intended appeal out of time.

14.  By the EOT Decision, the Deputy Judge considered a delay of over six months as extremely substantial and inordinate.  In the absence of any medical evidence in support, the Deputy Judge was not satisfied that the applicant had provided any good reason for his serious delay.  As the applicant failed to put forth any proper or valid draft or proposed grounds of appeal and his intended appeal has no prospect of success, the Deputy Judge refused his application for extension of time.

The Present Application

15.  By a summons and a supporting affirmation both filed on 23 September 2022 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons, he again asked for leave to be granted for him to advance “a new sole ground of appeal” without giving any particulars or elaboration.  In his supporting affirmation, the applicant stated that he could not return to his home country because his problems had not been solved.

16.  Contrary to the directions of the Registrar of Civil Appeals made on 23 September 2022, the applicant did not lodge any written submissions.

Discussion

17.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

18.  We agree with the Deputy Judge that the applicant’s delay of over six months was very substantial and inordinate and the applicant had failed to provide any cogent explanation for his delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

19.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

20.  As a start, general and bare assertions on the applicant’s fear if refouled to his home country do not constitute valid grounds of appeal.  Even when he appeared before the Deputy Judge during the hearing of the EOT Summons, the applicant repeated his claim that he could not return to Pakistan because he still had problems there, but failed to give any further elaboration or specific particulars in support.  Nowhere in his summons or supporting affirmation for the present application has the applicant identified any error in the Leave Decision with specific particulars. As such, no viable ground of appeal was given by the applicant.  The intended appeal must fail on this basis alone.

21.  The applicant’s request for leave to advance “a new sole ground of appeal” must also be rejected, as he did not even specify what this ground was.  In any event, it is well established that this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Daljit Singh [2018] HKCA 32 at [10]; Re Qadir Sher [2018] HKCA 160 at [11]; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

22.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 23 September 2022 dismissed.