RE MUDASSAR IJAZ ALIAS MUHAMMAD AFZAL

CAMP 207/2020

[2022] HKCA 373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 207 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 322 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 8 October 2019, Deputy High Court Judge 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 22 October 2019.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 22 July 2020 (late by 9 months) for extension of time to appeal.  That summons was dismissed by the Judge on 2 November 2020.

3.  On 5 November 2020, the applicant filed his summons in CAMP 207/2020 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  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.  In compliance with the directions made by the Registrar of Civil Appeals on 28 December 2020, the applicant filed his written submissions on 5 January 2021.

Background

5.  The brief background according to the applicant is as follows.  The applicant claimed that he was the only eye-witness to the murder on 8 February 1998 of his friend, Muhammad Afzal (“Afzal”), by a notorious bandit and hired killer Muhammad Akram (“Akram”) and two unknown assailants.  Fearing that Akram would come after him, the applicant refused to identify him to the police during their investigation.  Several days later, when he was in the village market, Akram approached him and warned him that he would kill him if he dared to talk to the police about the killing.  However, as the police kept pressing him to identify the culprit, and fearing that Akram would silence him by killing him, the applicant decided to leave Pakistan.

6.  The applicant arrived in Hong Kong on 25 May 1998 where he subsequently overstayed until some ten years later when he was arrested by police on 29 December 2008 and was subsequently charged for illegally staying in Hong Kong and for using a false passport.  He was subsequently convicted and sentenced to prison for six months.  Upon discharge from prison, the applicant raised a torture claim on the basis that if he were to return to Pakistan, he would be harmed or even killed by Akram for having witnessed the murder.  Upon its rejection by the Immigration Department, he then raised a non-refoulement protection claim on the same basis.

7.  By a Notice of Decision and Notice of Further Decision made by the Director of Immigration (“the Director”) dated 24 June 2016 and 14 July 2017, the Director decided against the applicant’s claim. The Director’s decisions covered all applicable risks. 

8.  The applicant appealed the Director’s decisions to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  He attended an oral hearing on 10 November 2017 and by its decision dated 12 January 2018, the Board dismissed the appeal and confirmed the Director’s decisions.  The Board noted that at the applicant’s second interview with the immigration officer in 19 May 2016, he alleged that Akram had died of a heart attack probably sometime in 2014.  Then, after a short break with his duty lawyer, he stated for the first time that there were two unknown assailants with Akram when they went to his house around July 1998 (after the applicant left Pakistan) and opened fire outside his house.  For the reasons stated in [28] to [31], the Board found that the threat to the applicant no longer existed with Akram’s death, and that the applicant had only subsequently attempted to boost the significance of the two unknown assailants for the purpose of his claim.  The Board found that internal relocation would be a reasonable and viable option should he still worry about his safety despite the death of Akram.   For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds.  

Application for leave to start judicial review

9.  On 28 February 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision but he did not provide any grounds for relief.  In his supporting affirmation of the same date and his subsequent written submission of 10 August 2018, he merely repeated his claim that his life would be in danger in his home country and pleaded that he be allowed to stay in Hong Kong as he has since married a local resident. 

The JR Decision

10.  The applicant attended an oral hearing on 15 August 2019 and by his decision made on 8 October 2019, the Judge refused the leave application.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [13] - [16] 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.     In the applicant’s case, even accepting his own case at the highest, and as correctly found by the Board, the fact of Akram’s death has effectively put an end to any real or substantial risk of any harm to the applicant upon his return to Pakistan, and of which I am unable to see any prospect of success in challenging such finding by the Board.

15.     Furthermore, whatever remaining risk of any harm from Akram’s followers, as established by both the Director and the Board in their respective decision that such risk is a localized one and that it is not unreasonable or unsafe for the applicant 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.

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.”

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 22 July 2020 for extension of time to appeal.  That was dismissed by the Judge on 2 November 2020.  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 9 months between the JR Decision and the summons filed in the Court of First Instance.  His delay is substantial.   

13.  As for (2), the reasons for the delay, the applicant alleged in both his affirmation and at the hearing before the Judge that after he received the JR Decision sometime in October 2019, he did not know what to do with it, and so he had to get help from his friend who took a long time to prepare the documents for his appeal, which caused the delay.  The Judge had rightly found that ignorance of the law could not be accepted as a good and valid reason for the delay.

14.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  In his application for extension of time before the Judge, he did not raise any proper ground of appeal against the JR Decision, and the Judge found no realistic prospect of success in the intended appeal and thus refused leave.

15.  In his summons and supporting affirmation for the present application before this Court, he did not provide any ground to reverse the JR Decision.  In his written submission, he advanced the following grounds:

 i.     The Judge did not analyze his claim properly.

 ii.     The Judge was wrong as a matter of law for not having applied the principle of irrationality in reviewing the Director’s and the Board’s decisions.

 iii.     The decision has significant implications for his substantial right not to be subject to torture and his right to non-refoulement protection.

 iv.     The Judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the Director’s decision whereby the Director and the Board were required to give reasons justifying their decisions.

 v.     Even though his problem was severe and he had submitted all the proofs, the Judge did not take greater care and disappointed him.

 vi.     The Judge’s decision was wrong.

 vii.     The Board did not give sufficient chance for him to arrange his evidence.

 viii.     The Board had significantly relied on the source of news which is not officially recognized, or is simply hearsay.

16.  In assessing the merits of the intended appeal, the court 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.

17.  This Court has repeatedly emphasized that the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary factual decision makers are the Director and subsequently the Board.  Assessment of evidence and risk of harm, are primarily within the province of the Board.  Here, the Board had rightly and clearly pointed out that the applicant’s alleged risk of harm from his enemy Akram had gone as on his own case, Akram had died sometime in 2014.  It was only when the applicant realized the detrimental impact of this on his claim that he then added an allegation about two other assailants.   The judge rightly found no errors of law or procedural unfairness or irrationality in the decision of the Board. 

18.  The applicant’s grounds against the Judge’s decision are just bare assertions without particulars and evidence in support.

19.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 5 November 2020.