RE MUHAMMAD USMAN

CAMP 110/2023, [2024] HKCA 249

On Appeal From [2020] HKCFI 1674

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 110 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 456 OF 2018)

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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 20 March 2023, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 16 March 2023.  By that order the Deputy Judge refused the applicant’s application for extension of time to appeal ([2023] HKCFI 762)  (“the EOT Decision”)  against his earlier order dated 3 August 2020, refusing the applicant’s application for leave to apply for judicial review ([2020] HKCFI 1674)  (“the Leave 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 12 March 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 16 August 2017, by which the Director rejected his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, 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 last entered Hong Kong illegally on 12 May 2010 and was arrested by the police on 4 September 2010.  He made a torture claim on 6 September 2010 which was refused by the Director on 21 February 2012.  He did not lodge any appeal to the Board.  On 24 July 2014, he filed a Supplementary Claim Form seeking non-refoulement protection on the basis that if refouled, he would be harmed or killed by a loan shark after he had defaulted on his loan repayments.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] - [7] 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 other than torture risk[1], namely, BOR2 risk[2], BOR3 risk[3] and persecution risk[4].  Having assessed all the evidence, the Director considered that his claim failed on all applicable grounds.

6.  On 25 August 2017, the applicant appealed against the Director’s Decision to the Board.  On 6 February 2018, he attended an oral hearing before the Board.  By the Board’s Decision, the Board dismissed his appeal.  The Board doubted his credibility noting that there were inconsistencies, discrepancies and implausibility in his claim in relation to his alleged loan and the threats from the loan shark.

The Leave Decision

7.  On 20 March 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  The applicant did not advance any ground of review and only stated in his affirmation that he was worried that the loan shark and the police might kill him.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [12] - [17] of the Leave Decision:

“12. On 20 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of 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 would be killed by his creditor if refouled to Pakistan without putting forward any proper or valid ground for his intended challenge. Nor did he request any oral hearing for his application. As such I do not find any reasonably arguable basis for his intended application.

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. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 103 - 115 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of eth Board.

15. Furthermore, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16. 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.

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.”

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision 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.

10.  On 2 December 2022, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was almost two years and three months late with his intended appeal.[5] In his summons and supporting affirmation, he stated that he did not receive the court’s order without further explanation and claimed that originally he wanted to withdraw his legal proceedings so that he could return to his home country but he changed his mind after receiving fresh information from his family that serious threats over his safety still persisted.  An oral hearing was held on 9 March 2023 and the applicant appeared in person with the assistance of a Punjabi interpreter.

11.  By the EOT Decision, the Deputy Judge noted that the Leave Decision was sent on the same day to the last reported address of the applicant without being returned through undelivered post, and the applicant’s change of mind regarding his legal process could not be a valid reason for the delay.  As such, the Deputy Judge was not satisfied that the applicant had provided any good reason for his very substantial and inordinate delay. Further, the applicant also failed to advance any proper ground of appeal and there was no prospect of success in his intended appeal.  Accordingly, the Deputy Judge dismissed his application for extension of time to appeal.

The Present Application

12.  By a summons and supporting affirmation both filed on 20 March 2023, the applicant applied for leave to appeal against the EOT Decision.  In his summons, he did not advance any ground of appeal.  In his supporting affirmation, he only stated that he did not have access to legal advice but understood that there was a good ground of appeal.  However, he did not further elaborate as to what that ground was.

13.  Pursuant to the directions made by the Registrar of Civil Appeals on 20 March 2023, the applicant lodged his written submissions on 3 April 2023.  In those submissions, he cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  had acted in a procedurally unfair manner without properly assessing his credibility.  He also referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which was about the late filing of notice of appeal to the Board.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.

Discussion

14.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

15.  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].

16.  We consider that the applicant’s delay of almost two years and three months as severely substantial and inordinate and we agree with the Deputy Judge that the applicant had failed to give any good reason 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]; and Re MA [2019] HKCA 1020 at [18].

17.  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 Leave Decision 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].

18.  In our view, this application has no merit at all and must fail.  At the outset, the arguments raised in his written submissions are all new grounds not raised before the Deputy Judge.  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 [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Accordingly, we refuse to entertain his new grounds.

19.  More importantly, and in any event, his assertions are all general and bare assertions and the applicant failed to point out any specific error in the Leave Decision.  None of his assertions are proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].  His appeal must fail on this basis alone.

20.  For completeness, it has been repeatedly emphasised by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  In any event, the applicant failed to show that he had suffered any prejudice from the lack of legal representation and his contentions must fail.

21.  For the above reasons, the intended appeal is a non-starter and 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 20 March 2023 is dismissed.