RE RANA MUHAMMAD MUNAWAR HUSSAIN

CAMP 236/2023, [2024] HKCA 271

On Appeal From [2023] HKCFI 471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 236 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 175 OF 2019)

____________________

____________________

_______________

J U D G M E N T

_______________

Hon Au JA (giving the judgment of the court):

1.  On 23 June 2023, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 10 March 2023 ([2023] HKCFI 471) (“the Leave Decision”) refusing leave to apply for judicial review.  On 16 June 2023, the Judge refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2023] HKCFI 1529) (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 19 November 2018, dismissing the appeal against the decision of the Director of Immigration (“the Director”) 25 September 2017 rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to 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 arrived in Hong Kong on 14 April 2004 with permission to continue to work as a foreign domestic helper until the expiration of his employment contract on 1 September 2004.  He did not depart and instead overstayed, and was arrested by police on 10 August 2008.  He then made a torture claim which was rejected by the Director on 6 January 2012 and his petition was rejected on 1 February 2012.  On 31 October 2014, he lodged a non‑refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his former girlfriend’s family who objected to their relationship.  Details of the applicant’s claim have been summarised by the Judge at [1] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 25 September 2017 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim on all applicable grounds other than the risk of torture[1], namely, BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decisions to the Board.  On 19 November 2018, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at [8] ‑ [9] of the Leave Decision:

“8. On 6 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (‘Board’) against the Director’s decision, and for which he attended an oral hearing on 2 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 November 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9. In its decision the Board accepted the Applicant’s claim of fear of harm from his former girlfriend’s family over their relationship but found no evidence of any real intention of his former girlfriend’s family to seriously harm or kill him or any reason for them to still have any adverse interest in him after all these years since he left the country, and that in any event it was a private personal dispute between them without any official involvement that state/police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.”

7.  On 18 January 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review was given in the Form 86 or the supporting affirmation.

8.  The applicant attended an oral hearing in person before the Judge on 25 August 2022.  An Urdu interpreter was also present to provide language assistance.

THE JUDGE’S DECISION

9.  On 10 March 2023, the Judge refused to grant the applicant leave to apply for judicial review.  His reasons were stated at [12] ‑ [14] of the Leave Decision:

“12. 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 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, 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.”

10.  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.

11.  On 4 May 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was some six weeks late with his intended appeal.

12.  On 16 June 2023, the Judge refused the applicant’s application, holding that the applicant did not have good reasons for his substantial and inordinate delay, and that in the absence of any error in the decision being clearly and properly identified by the applicant, there is no prospect of success in his intended appeal.

THIS APPLICATION

13.  By a summons and a supporting affirmation taken out on 23 June 2023 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons and supporting affirmation, the applicant did not give any reason for his delay or any ground of review, and merely stated that he disagreed with the Judge’s decision and that if refouled he would be killed by his enemies.

14.  Pursuant to the directions of the Registrar of Civil Appeals dated 23 June 2023, the applicant lodged his written submissions on 6 July 2023.  In those submissions, the applicant reiterated that his life would be in danger if refouled.  He complained that the Leave Decision and the Board’s Decision were irrational and procedurally unfair as the Judge and the Board both failed to properly analyse his claim and the situation in his home country.

DISCUSSION

15.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

16.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

17.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

18.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

19.  At the outset, the applicant’s delay of over six weeks is substantial and inordinate.  He failed to provide any reason, let alone good reason, for his delay.

20.  More importantly, there is also no merit in the applicant’s intended appeal.  His complaints are general allegations without specific particulars.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Both the Board and the Judge held oral hearings to allow the applicant to make oral submissions and ample opportunities had been given to the applicant to make written submissions on his case and the situation of his home country.  There is no substance in his complaints.

21.  The applicant has failed to identify any error or raise any viable ground of appeal against the Leave Decision.

22.  There is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

23.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 23 June 2023 is dismissed