RE MAJEED ABDUL

CAMP 105/2022, [2023] HKCA 874

On Appeal From [2022] HKCFI 66

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 105 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2028 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 7 January 2022, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”) [2022] HKCFI 66. 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.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 1 March 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 13 April 2022 [2022] HKCFI 933.

3.  On 14 April 2022, the applicant filed a summons in CAMP 105/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal against the JR Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 14 April 2022, the applicant should lodge his written submissions in support of the Summons on or before 28 April 2022.  However, he failed to do so.  The Registrar further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.

5.  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.  

Background

6.  The applicant is a national of Pakistan. He last entered Hong Kong on 30 November 2011 illegally and was arrested by police on the same day.  He raised a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which was later taken as non-refoulement claim on 3 December 2011 alleging that if refouled, he would be harmed or even killed by a powerful and influential person called Chaudhary (“C”) and his associates who were connected with the Pakistan People’s Party (“PPP”) as the applicant refused to join the PPP.  According to the applicant, he was a long-time supporter of Pakistan Muslim League (N) (“PML-N”).  The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision.

7.  By a Notice of Decision dated 2 September 2015, the Director of Immigration (“the Director”) had decided against the applicant’s claim (“the Director’s 1^st Decision”).  The Director’s 1^st Decision covered the BOR 3 risk[1], the torture risk[2] and the persecution risk[3]. 

8.  In a Notice of Further Decision dated 7 March 2017, the Director also rejected the applicant’s claim on BOR 2 risk[4]  (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return to his home country.

9.  The applicant appealed the Director’s 1^st Decision to the Torture Claims Appeal Board/Non-refoulment Claims Petition Office (“the Board”).  An oral hearing was held on 11 April 2016, during which the applicant gave evidence before the Board.  His appeal was dismissed on 15 February 2017 (“the Board’s 1^st Decision”).  For the reasons set out at [51] – [64], the Board found that the applicant’s evidence was vague and his evidence on the political aspects of the claim was not corroborated by the country of origin information (“COI”).  The applicant originally alleged that as C tried to persuade him to change his political allegiance from the PML-N to PPP in 1996, he escaped to Hong Kong to save his life.  However he went back to Pakistan in late 1996, and was assaulted by the same people, and thus he came to Hong Kong again in November 2011. 

10.  However, the information obtained by the Board online[5] showed that even though C might have been in the PPP in 1996, he was elected as a member of the Provincial Assembly in the Punjab on the PML-Q ticket and is currently the Senior Vice-President of PML-Q.  PML-Q is a minority political group with only two seats in the National Assembly.  The applicant admitted at the Board hearing that after 2002, C, whatever his local influence might have been, had nothing to do with PPP.  It was also found that the applicant failed to give clear evidence of the alleged attack on him and his son in 2011.  The Board concluded that the applicant has made up his story and that the political aspect of his claim was incredible.  Moreover, the alleged injuries did not attain the level of severity to be classified as “torture” and there was no evidence of state involvement.  For these reasons, the Board rejected the applicant’s non-refoulement claim on the torture risk, the BOR3 risk and the persecution risk. 

11.  After the Director’s 2^nd Decision was given on 7 March 2017, the applicant appealed to the Board on 14 March 2017. By its decision given on 21 September 2018 (“the Board’s 2^nd Decision”), the Board concluded that, since the applicant did not provide any additional information and in light of the Board’s 1^st Decision, the applicant’s claim on the BOR 2 risk was not established.

Application for leave to start judicial review

12.  On 26 September 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s 2^nd Decision only, but no ground for seeking relief was given.  In his supporting affirmation of the same date, he did not provide any ground for his intended challenge save for saying that he could not go back to his home country because his life was not safe.

The JR Decision

13.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  After due consideration of the Director’s and the Board’s decisions, the Judge refused leave for judicial review for reasons set out in [12] - [17] of the JR Decision:

“12.   The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13.   The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.   In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13(1). ……Assessment of evidence and COI materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.   He has submitted no valid ground to assist his application.

16.   The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.   There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

Application for extension of time to appeal the JR Decision

14.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 1 March 2022 for an extension of time to appeal.  That was dismissed by the Judge on 13 April 2022.  Hence, the Summons to this court. 

Discussion

15.  In considering whether to extend time for appeal, 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). 

16.  As for (1), the applicant was late by more than 5 weeks between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.  

17.  As for (2), the reasons for the delay, the applicant alleged that he did not receive the JR Decision, without providing any further details or documentary evidence in support of his allegation. Further, the court file showed that the JR Decision was sent to his last reported address on 7 January 2022 which was the same day the JR Decision was handed down and it was not returned as undeliverable mail.  No good reason has been shown for his delay. 

18.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant did not provide any proper or valid proposed grounds of appeal or pinpointed any error of the JR Decision.

19.  The Judge had reviewed the Board’s 1^st and 2^nd Decisions and found that the Board had in its first decision properly dealt the applicant’s claimed fear and had correctly rejected his claim on the torture risk, the BOR 3 risk and the persecution risk.  As the applicant did not add any new evidence on the BOR 2 risk, there was simply no scope for finding in the applicant’s favour on the BOR 2 risk when his claim under all the other applicable grounds had been duly rejected.

20.  On the basis of the findings in the Board’s 1^st Decision, the applicant’s claim on the BOR 2 risk could not be established and we agree with the Judge’s conclusion that there is no basis to challenge the Board’s 2^nd Decision.

21.  We are satisfied that the Judge had reviewed the Board’s 1^st and 2^nd Decisions with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.   

22.  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 14 April 2022.