RE AHMED JAMIL

CAMP 567/2021

[2022] HKCA 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 567 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1500 OF 2018)

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JUDGMENT

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Hon Chu JA (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 18 May 2021 refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation in support of his application. Despite directions given by the Registrar of Civil Appeals, the applicant has not put in a written submission.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the applicant’s summons and affirmation, 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 decisions of the Director of Immigration (“the Director”) rejecting his non-refoulement claim.

5.  The applicant is a Pakistani national aged 43. He entered into Hong Kong illegally and was arrested by the police on 13 October 2013. On 16 October 2013, he made a non-refoulement based on fear of being harmed or killed by the people of a terrorist group called Muttahida Qaumi Movement (“MQM”) because he had testified against three of its leading members in connection with the murder of his sister and her husband. The details of the applicant’s claim were set out in the Director’s first decision at [12]. We will not repeat them.

6.  By two decisions dated 6 June 2016 and 10 July 2017, the Director rejected the applicant’s claim. The first decision covered the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds while the further decision related to the BOR 2 risk[4] ground.

7.  The applicant’s appeal to the Board was heard at an oral hearing held on 8 December 2017. By its decision dated 2 February 2018, the Board dismissed the appeal. The Board found the applicant had faced certain low levels of harassment by local extortionists or gangsters, but rejected his claims that he was under serious harm from the people of MQM. The Board further found state protection and internal relocation alternatives were reasonably available. The Board concluded that the applicant failed to establish entitlement to non-refoulement protection under any of the applicable grounds.

8.  On 30 July 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. Order 53 rule 4(1) of the Rules of the High Court, Cap 4 provides that an application for leave to apply for judicial review must be made promptly and in any event within three months from the date when the grounds for the application first arose. The last date for the applicant to file his Form 86 was 2 May 2018. The applicant was accordingly late by nearly four months when he filed the Form 86.

9.  The Judge dealt with the application on the papers. By a Form CALL-1 dated 18 May 2021[5], the Judge refused to extend the time for the applicant to apply for judicial review and dismissed his application for leave to apply for judicial review. The Judge set out the reasons for his decision at [14] to [19] as follows:

“14. In the Applicant’s case, a delay of almost 3 months must be considered as substantial or excessive, for which he did not provide any explanation, and as the record shows that the Board’s decision was sent on the same day to his last reported address and that it has never been returned through undelivered post, I do not see any good reason for his significant delay.

15. As for the merits, if any, of his intended application, as noted above, the Applicant has not put forward any proper grounds for his intended challenge, and in the absence of any error of law or irrationality 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 merits in his intended application.

16. 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.

17. 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.

18. 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.

19. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time and accordingly dismiss his leave application.”

10.  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 order refusing leave within 14 days after such refusal. The 14-day period for the applicant to appeal the Judge’s order expired on 1 June 2021.

11.  By a summons filed on 25 June 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge heard the application at an oral hearing on 3 November 2021. By his decision handed down on 17 November 2021[6], he dismissed the application.

12.  On 16 December 2021, the applicant filed the present summons together with an affirmation to make a further application to this Court for extension of time to appeal.

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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.

14.  The applicant was about three weeks late when he filed the 26 June 2021 summons. The delay is not insubstantial. The applicant explained that he did not receive the Judge’s decision as he had moved in February 2021. We note from the Court record that the Form CALL-1 and the sealed order that were mailed to the applicant on 18 May 2021 were returned undelivered. After ascertaining his new address from the Immigration Department, the Court re-sent the Form CALL-1 and the Judge’s order to the applicant on 9 June 2021. While we accepted that the applicant received the Judge’s order late, this was due to his failure to promptly inform the Court of the change in his address. We do not find the explanation for the delay satisfactory. In the absence of good reason for the delay, the applicant has to show that his intended appeal has a real prospect of success.

15.  In considering 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].

16.  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.

17.  In the present application, the applicant did not provide any ground in support of his intended appeal in either the summons or the affirmation. Nor is there an explanation for the delay in making the application for leave to apply for judicial review.

18.  We have in any event examined the Board’s decision. We agree with the Judge that there is no reasonably arguable basis for challenging the Board’s finding and the Board’s reasons do not show any error of law, irrationality of procedural irregularity.

19.  As the applicant’s intended appeal against the Judge’s refusal of 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 summons filed on 16 December 2021.