RE MAHMOOD SAJID

CAMP 369/2022, [2024] HKCA 906

On Appeal From [2022] HKCFI 998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 369 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 350 OF 2019)

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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 22 September 2022, 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 21 September 2022. By that order, the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022])  HKCFI 2814)  (“the EOT Decision”)  against his earlier order dated 7 April 2022, refusing to grant the applicant leave to apply for judicial review ([2022] HKCFI 998)  (“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 19 November 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 26 January 2018 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 claimed to have entered Hong Kong illegally from Mainland China on 2 February 2016.  He was arrested by the police on 25 February 2016.  On 27 February 2016, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed his girlfriend’s family who objected to their relationship. He also claimed that the bombardment of his home town located at the border of Pakistan and India would put his life in danger[1]. Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] - [5] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim on 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 13 September 2018 and gave oral evidence.  The Board dismissed his appeal on 19 November 2018 and confirmed the Director’s Decision.  The Board considered that there were significant inconsistencies and implausibility in the applicant’s oral evidence and written claims, in particular, as to the circumstances in which the assault from his girlfriend’s family that allegedly took place in 2011 or 2012[6], and the first emergence of the claimed death threat received by him from Kramat[7], a member of his girlfriend’s family.  Having assessed the evidence, the Board did not accept that the applicant would face harm of any kind in Pakistan, whether from his girlfriend’s family or the bombardment of his home town[8]. The Board further found that the applicant could safely relocate to another part of Pakistan[9]. Accordingly, the Board considered that the applicant had failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 8 February 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  No ground of challenge was put forth by the applicant in his Form 86.  In his supporting affirmation, he merely stated that he was not satisfied with the Director’s Decision and his life was still in danger.  As he did not request for an 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 [11] - [14] of the Leave Decision:

“11. 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.

12. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions 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.

13. 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.

14.  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 10 May 2022, 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 almost three weeks late with his intended appeal.  In his summons, he did not give any ground in support of his application.  In his supporting affirmation, he asserted that he did not receive the Leave Decision within 14 days and he should be given a reasonable opportunity to present his case.  His application was heard before the Deputy Judge on 7 September 2022 with assistance of an Urdu interpreter.

11.  By the EOT Decision, the Deputy Judge held that his delay was substantial and inordinate.  The Deputy Judge noted the Leave Decision was sent on 7 April 2022 to the applicant’s last reported address without being returned through undelivered post.  During the hearing for the EOT Summons, the applicant explained that he was unable to file his intended appeal within time because the Court Registry was temporarily closed due to COVID-19 pandemic.  The Deputy Judge considered that while the Court Registry did close temporarily during the general adjournment period between 7 March 2022 and 11 April 2022, it had resumed operation since 12 April 2022 which was well before the deadline of 21 April 2022 for the applicant to file his intended appeal.  As such, the Deputy Judge found that the applicant had failed to provide any good reason for his delay.

12.  The Deputy Judge further found that the applicant did not put forward any proper or valid grounds of appeal, and that there was no reasonable prospect of success in his intended appeal.  Accordingly, the Deputy Judge refused his application for extension of time to appeal.

The Present Application

13.  On 22 September 2022, the applicant filed a summons together with a supporting affirmation for leave to appeal against the EOT Decision.  In his summons, he failed to give any reason in support of his application.  In his supporting affirmation, he merely stated that he “strongly opposed the decision made by the authorities”.

14.  Pursuant to the directions of the Registrar of Civil Appeals made on 22 September 2022, the applicant lodged his written submissions on 6 October 2022.  In those submissions, he repeated his disagreement with the decisions made by the Director and the Board and his complaint that his case was not determined fairly.  He complained that the court and the authorities had been negligent and failed to perform the standard duty of care that was specifically targeted at non-refoulement claimant like him and that he was thus discriminated and placed at a disadvantageous position.

Discussion

15.  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.

16.  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].

17.  We consider that his delay of almost three weeks is substantial and inordinate and we agree with the Deputy Judge that the applicant has failed to provide any good reasons 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].

18.  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].

19.  In our view, the applicant’s intended appeal is clearly without merit.  As a start, the arguments raised in his written submissions are all new grounds.  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 Gurpreet Singh [2021] HKCA 1740 at [15].

20.  More importantly, his written submissions are all general and bare assertions.  Most of his complaints are directed at the Director and the Board.  He has not identified any error with specific particulars on why the Deputy Judge was wrong in his reasons.  Accordingly, none of his submissions are proper grounds of appeal: Re Farrukh Zaib, supra, at [28].

21.  Further, as repeatedly emphasised by this Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration, supra, at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

22.  In any event, in the present case, we agree with the Deputy Judge that the Board rejected the applicant’s claim on the basis of the lack of reliable and consistent evidence that would show that he faced a real or genuine risk or substantial grounds for believing that he would suffer the harm he claimed to fear if refouled.  The Deputy Judge, after rigorous examination and anxious scrutiny, could not find any error of law or procedural unfairness or reasonably arguable grounds to challenge the findings of the Board.  In the premises, we see no basis to interfere with the Leave Decision.

23.  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 22 September 2022 is dismissed.