RE MEHMOOD NASIR

CAMP 394/2021

[2022] HKCA 1494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 394 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2195 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 19 January 2021, DHCJ C.P. Pang (“Judge Pang”)  refused to grant extension of time for the applicant’s application for leave to apply for judicial review and dismissed the application for 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.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 15 March 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by DHCJ Bruno Chan (“Judge Chan”)  on 9 September 2021. 

3.  On 20 September 2021, the applicant filed a summons in CAMP 394/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 20 September 2021, the applicant lodged his written submissions on 4 October 2021.    

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 entered Hong Kong illegally on 17 September 2013 and was arrested by the police on 18 September 2013.  He was then transferred to the Immigration Department for investigation and on 28 February 2014, he lodged his non-refoulement claim alleging that if refouled, he would be harmed or even killed by his cousin, Naeem Baksh (“NB”)  because of a land dispute in Pakistan.  The factual background of this case was succinctly summarised by Judge Pang at [2] of the JR Decision ([2021] HKCFI 63).

7.  By a Notice of Decision dated 9 September 2015 (“Director’s 1^st Decision”)  and a Notice of Further Decision dated 4 May 2017 (“Director’s 2^nd Decision”), the Director of Immigration (“the Director”)  had decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

8.  On 17 September 2015, the applicant appealed the Director’s 1^st decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  and attended an oral hearing on 22 September 2016.  By its decision dated 15 March 2017 (“the Board’s 1^st Decision”), the Board dismissed the appeal and confirmed the Director’s 1^st decision.  For the reasons set out at [7] to [29], the Board found that the applicant’s claim was premised on a private land dispute.  The applicant’s assertion that NB was a supporter of the Pakistan Muslim League-N (“PMLN”)  and had a good relationship with authorities and the police, even if true, did not advance his case as there is no evidence of any state involvement or instigation or acquiescence.  Further, the applicant, apart from receiving verbal death threats, did not sustain any injury during the alleged incidents of conflict with NB [3], and the Board did not consider there were any substantial grounds showing any foreseeable and real risk of harm upon the applicant’s return to Pakistan. Relevant country of origin information (COI)  indicated that there is reasonable state protection, and internal relocation is a viable option as the Board did not accept that NB would still be interested in locating the applicant all over Pakistan, especially since, being away from his home town, he will not be building on the land in dispute.  For the aforesaid reasons, his non-refoulement claim was rejected on the grounds of BOR 3 risk, torture risk and persecution risk.

9.  On 12 May 2017, the applicant appealed the Director’s 2^nd Decision to the Board.  By its decision dated 30 August 2017 (“the Board’s 2^nd Decision”), the Board dismissed the appeal by way of paper disposal and confirmed the Director’s 2^nd decision.  The applicant had provided no further material in support of his claim relating to BOR 2 risk.  For the reasons stated in the Board’s 1^st Decision, the applicant’s claim on BOR 2 risk was also rejected. 

Application for leave to start judicial review

10.  On 10 October 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and Board’s decisions. Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose.  The applicant’s intended application for judicial review was made out of time.

11.  There was some confusion in the Form 86 as to which decisions of the Director and the Board the applicant was seeking judicial review. The Judge carefully analyzed the documents exhibited in the supporting affirmation, and found that the applicant was referring to the Board’s 2^nd Decision.  In any event, the Judge treated both decisions of the Board as the subject matter of the intended judicial review.

The JR Decision

12.  The applicant did not request oral hearing and the application was disposed of on paper.  After due consideration of the decisions of the Director and the Board, the Judge refused leave for judicial review of the Board’s 1^st and 2^nd Decisions for reasons set out in [19] - [33] of the JR Decision:

“19. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  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 are errors of law, procedural unfairness or irrationality in the decision of the Board.

Application out of time

20.  It must be pointed out first that the applicant’s intended application for judicial review was made out of time, as against any decisions of the Director and the Board.  Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  In considering whether to extend time, the court will have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

21.  The principles have been further explained by the Court of Final Appeal in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 37.

22.  As against the Board’s second decision, the 3-month time limit ended on 30 November 2017 and the application was late by at least more than 10 months.  The delay was substantial and excessive.  The applicant did not request extension of time or give explanation for the delay.  I cannot find any good reason for the undue delay.  The delay is inexcusable.

23.  The delay in any application against the first decision of the Board and decisions of the Director are even longer and more inexplicable.

Merits of the intended application

24.  Nevertheless, I will also consider the merits of the intended judicial review.  Far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

25.  In the present case, the Board in its first decision did not find it necessary to make finding on the credibility of the applicant.  It considered that his appeal failed “independently of a lack of credibility”.  I understand that to mean that the primary events asserted by the applicant were accepted to be true as supporting facts of his claim.  However, even on such findings there are no substantial ground to believe that he will face a real risk of serious harm at the hands of his cousin.  Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.

26.  In its second decision, based on the reasons given in its first decision and the fact that the applicant had not provided any new material, the Board rejected the claim based on BOR 2 risk.

27.  As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

28.  The applicant stated no grounds of the judicial review in Form 86.  What he stated in his affirmation was only a regurgitation of his claimed fear.  He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.

29.  I do not find any reasonably arguable basis in what he stated to challenge the findings of the Board.  Nor do I find anything amiss in the Board’s analysis on its determination of the BOR 2 risk in its second decision.  On the facts of the case, I cannot see any additional basis for advancing a case on such risk, independent from the BOR 3 risk, the persecution risk, and the torture risk.

30.  Indeed, the claim of the applicant is quite unconvincing.  The applicant delayed in lodging the claim for protection after he came to Hong Kong.  He only lodged his claim more than 5 months after he was arrested.  Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety.  It could be taken into account as damaging the credibility of the claim.

31.  The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

32.  Having considered both decisions of the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure to apply high standards of fairness in its decisions.

33.  For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.”

Application for extension of time to appeal the JR Decision

13.  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 15 March 2021 for an extension of time to appeal.  That was dismissed by Judge Chan on 9 September 2021.  Hence, the Summons to this court. 

Discussion

14.  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). 

15.  As for (1), the applicant was late by almost 6 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.

16.  As for (2), the reasons for the delay, in the applicant’s supporting affirmation filed on 15 March 2021, he explained that he did not receive the JR Decision, and he was only informed of it by the Immigration officer when reporting for recognizance on 12 March 2021.  He further explained that he was illiterate and legally unrepresented and therefore was unaware of the legal procedures and the time limit.

17.  However, the court record showed that the JR Decision was sent on 19 January 2021 to the applicant’s last reported address without being returned through undelivered post.  In the absence of any further details or documentary evidence to corroborate his bare assertions, Judge Chan was not satisfied that the applicant had provided a good reason for his delay.  We agree with Judge Chan’s decision.

18.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  In the applicant’s supporting affirmation filed on 15 March 2021, he complained that the JR Decision was unfairly made and Judge Pang did not allow him an opportunity to clarify his case and the situation in his home country.

19.  In the Summons and supporting affirmation filed in this Court, the applicant failed to provide any ground of appeal against the JR Decision save for repeating his complaint as set out in his affirmation filed on 15 March 2021.

20.  In his written submissions, he quoted passages Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and submitted that “high standards of fairness” applied to the determination of a non-refoulement claim.  He complained that the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  He further referred to section 37ZT of the Immigration Ordinance (Cap. 115)  concerning the late filing of notice of appeal.  However, he did not explain or elaborate on how those legal authorities and provisions would apply and assist his case.

21.  It is clear from the Board’s decision that the applicant’s claim was rejected as his claim only involved a private dispute without any state instigation or acquiescence.  The Board did not consider that the applicant will face any real risk of harm upon his return to Pakistan, and internal relocation is a viable option.  It was perfectly open for the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds.  As with Judge Pang, we do not see any in this case.

22.  Regarding the applicant’s complaint that Judge Pang did not give him an opportunity to clarify his case and to explain the situation of his country, it is a bare assertion with any supporting evidence.  Further, it is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and the application for leave to apply for judicial review is not a re-hearing of the applicant’s case.  The primary decision makers are the Director and on appeal, which operates as a re-hearing, the Board.  Assessment of evidence and risk of harm are primarily within the province of the Board.  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.  As the applicant had failed to advance any valid grounds pointing to errors in the Board’s decision, Judge Pang was plainly rightly to refuse the applicant’s application.

23.  In all, we are satisfied that Judge Pang had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.  

24.  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 20 September 2021.