RE SARWAR SHAHBAZ

CAMP 221/2021

[2021] HKCA 1528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 221 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2372 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 To (“the Judge”) dated 28 April 2021 refusing to give him leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission in support of his application.  

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, affirmation and written submission, 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 decision of the Director of Immigration (“the Director”) refusing his non-refoulement claim.

5.  The applicant is a national of Pakistan aged 39.  He entered Hong Kong illegally and was arrested by the police on 1 September 2009.  He raised a torture claim on 3 September 2009, which was rejected by the Director on 26 April 2013.  The applicant’s appeal to the Board was dismissed on 17 June 2013.  Upon the commencement of the unified screening mechanism, the applicant’s claim was assessed as a non-refoulement claim on all applicable grounds, except the torture risk ground[1], in view of the previous rejection of his torture claim.

6.  The applicant’s claim is based on his fear of being harmed or killed by people of the Pakistan People’s Party as he had been an active supporter of Pakistan Muslim League (Q).  The details of the applicant’s claim were set out in the Director’s decision dated 4 December 2015 at [8] and the Board’s decision at [30] to [59].  We will not repeat them. 

7.  By his decision dated 4 December 2015, the Director rejected the applicant’s claim on the BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

8.  The applicant’s appeal to the Board was heard on 7 September 2017, during which the applicant answered questions from the Board.  By its decision dated 23 February 2018, the Board dismissed the appeal.  The Board considered there was a lot of contradictory and hearsay statements in the applicant’s case.  The Board accepted the applicant’s evidence but found that it was insufficient to satisfy the requirements under the three remaining applicable grounds.  The Board also considered that internal relocation is reasonably available, which would reduce or negate any risk of harm that the applicant may face.  The Board concluded that the applicant failed to make out a case for non-refoulement protection on any of the applicable grounds.

9.  Under Order 53 rule 4(1) of the Rules of the High Court, an application for judicial review should be made promptly and in any event within three months from the date when the grounds for application first arose.  The three months’ period for the applicant to apply to judicially review the Board’s decision expired on 23 May 2018.

10.  On 26 October 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The application was about five months late.  The Judge heard the application at an oral hearing which took place on three days.  The applicant explained to the Judge that he was arrested by the police in March 2018 and was later imprisoned until 18 October 2018, when he was discharged from prison and transferred to Immigration Department detention facility.  It was there that he was informed by his friend about the Board’s letter enclosing its decision.  

11.  By a Form CALL-1 dated 28 April 2021[5], the Judge refused to give leave to apply for judicial review for the reasons he gave at [23] to [30]. 

12.  In brief, the Judge found the applicant’s reasons for delay to be flimsy as it was one month after the Board gave its decision that he was detained by the police.  As to the merits of the intended judicial review, the Judge found the two grounds relied on by the applicant to be unarguable. In respect of the first ground which contended that the Board erred in finding against him on the BOR 3 and BOR 2 risks grounds, the Judge held that it is not for the court to re-assess the claim, and having regard to the reasons given by the Board there was no proper basis in public law to disturb its decision.  As to the second ground which contended that the Board erred in its reliance on the country of origin information (“COI”) and its conclusion that internal relocation is reasonably available, the Judge held that the Board had made proper approach to the COI and had fully addressed the applicant’s concern and the complaints were not borne out.  As the applicant’s intended judicial review has no prospect of success, the Judge did not extend the time for the applicant to apply for judicial review and dismissed his application.                                             

13.  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 12 May 2021.

14.  By a summons filed on 17 May 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on the papers and by his decision handed down on 2 June 2021[6] refused the application. 

15.  On 17 June 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

16.  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.

17.  The applicant was late by five days.  He explained in the application for extension of time before the Judge that he received the Form CALL-1 late.  Similar to the Judge, given the short delay, we would focus on the prospect of success of the intended appeal.           

18.  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].

19.  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.

20.  In the present application, the applicant did not set out any ground for the intended appeal in his summons or supporting affirmation.

21.  In his written submission, the applicant stated that he had submitted a lot of documents that he obtained from Pakistan, but the Director and the Board ignored them.  He also mentioned that he is happily married to a local Chinese woman in Hong Kong and he has applied for a visa.  He asked to be given a fair trial and a fair interview.    

22.  We are of the view that the matters put forward by the applicant do not amount to viable grounds of appeal against the Judge’s decision.  Critically, the applicant has failed to identify any error in the Judge’s decision and reasons.  There is therefore no proper basis for this Court to disturb the Judge’ decision.     

23.  We have in any event examined the Board’s decision.  The Board had duly considered the documents submitted by the applicant, and had accepted the factual basis of the applicant’s claim. The Board rejected the applicant’s appeal because on the facts they do not satisfy the requirements for affording non-refoulement protection under the applicable grounds.  We do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  

24.  The Judge was correct in finding the intended judicial review has no reasonable prospect of success and that it would be futile to extend the time to apply for judicial review.

25.  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 17 June 2021. 

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5] [2021] HKCFI 1180.

[6] [2021] HKCFI 1494.