RE MAZHAR BASHIR

CAMP 467/2021

[2022] HKCA 772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 467 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2230 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against a decision of Deputy High Court Judge C P Pang (“Judge”) dated 2 March 2021 refusing to grant leave to the applicant for him to apply for judicial review.[1] The applicant wished to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”) dated 3 October 2018 by which the Board refused to admit a late filing of an intended appeal by the applicant against the decision of the Director of Immigration (“Director”) dated 2 February 2017 to reject the applicant’s non-refoulement claim in relation to BOR 2 risk.[2]

2.  According to the applicant, he is a national of Pakistan born in 1970 in Japan to a Pakistani father and a Japanese mother. Whilst an infant, he was brought by his natural father to Pakistan and entrusted to the care of a friend. This friend and his wife became the applicant’s foster parents. In 1990, at the age of about 20, the applicant went to Japan and lived and worked there illegally for about 13 or 14 years. Whilst in Japan, he got into trouble with some Pakistani Shia men and they attacked him. The applicant returned to Pakistan in 2003. In 2004 he met the same Shia men who had attacked him in Japan, and they threatened to kill him. They tried to shoot him in 2005 but missed. In 2006, they misled his foster father into believing that he had changed religion from being a Muslim to an Ahmadi; they also threw a knife at him but missed. In September 2006 the applicant fled to Mainland China, and from there came illegally to Hong Kong on 1 November 2006.

3.  The applicant surrendered to the Immigration Department on 7 December 2006. On 19 March 2008, he lodged a torture claim which was later expanded to encompass other grounds.

4.  The applicant’s claim was initially assessed by the Director with respect to BOR 3 risk,^[3] persecution risk,^[4] and torture risk,^[5] and was rejected, as notified to the applicant by a notice of decision dated 24 February 2015.

5.  The applicant appealed to the Board. But at the hearing before the Board on 4 February 2016, the applicant chose to remain silent, except that he said a friend had telephoned him from Japan to say that if he went back to Pakistan he would be killed, but that if he stayed in Hong Kong his friend could arrange for a visa for him to go to Japan. In its decision issued on 29 November 2016, the Board dismissed the appeal. The Board found that even on the basis of the applicant’s case, there was no evidence that he had suffered any harm or injury of sufficient severity to give rise to the prescribed risks, and there was no substantial basis for fearing a risk that the Shia men would, after all these years, be willing to expend their resources to track down the applicant all over Pakistan. The Board went further and held that the applicant was dishonest and that his story was not reliable, in part because he did not raise his claim for protection until more than 15 months after he entered Hong Kong.

6.  By a letter dated 16 January 2017, the Director invited the applicant to submit additional facts relevant to his non-refoulement claim on all applicable grounds for protection including BOR 2 risk. On 1 February 2017, the applicant wrote to inform the Director that he had received calls from his enemy who wanted to know his address, and that he therefore did not want to go back to Pakistan. By notice of decision dated 2 February 2017, the Director rejected the applicant’s claim with respect to BOR 2 risk.

7.  The applicant failed to appeal within the 14-day period prescribed by section 37ZS(1) of the Immigration Ordinance (Cap 115), which expired on 18 February 2017. Instead he filed a notice of appeal out of time on 30 March 2017. As required by section 37ZT, the Board proceeded to decide, as a preliminary issue and without a hearing, whether to allow the late filing of the appeal.

8.  In its decision dated 3 October 2018, the Board noted that the applicant explained why he was late in filing the appeal by saying that he was sick and submitting copies of attendance and appointment slips from a hospital, but they showed only short attendances and many of them did not relate to the period of time in question. The Board concluded that the applicant had shown no reasonable excuse for the delay. For completeness, the Board considered the substance of the applicant’s claim and concluded that there was no merit in it and that the claim, even if allowed to proceed out of time, had no prospect of success. Accordingly, it rejected the application for late filing of the appeal.

9.  By a Form 86 dated 12 October 2018, the applicant applied to the Court of First Instance for leave to apply for judicial review of the Board’s decision dated 3 October 2018. He did not set out any grounds for judicial review in either the Form 86 or his supporting affirmation, which simply exhibited the documents relating to his non-refoulement claim.

10.  There was no request for an oral hearing of the application. Based on consideration of the documents, the Judge decided to refuse leave for judicial review, as explained in his decision set out in the Form CALL-1 dated 2 March 2021 as follows:

“ 17. The Notice of Appeal/ Petition filed with the Board in respect of the second decision of the Board was almost 1 ½ months late. The delay was not insignificant. The applicant explained that he was sick. However, he did not give details about it, nor the diagnosis and how his illness affected his ability to file the notice of appeal in time. The medical documents submitted by the applicant simply could not assist him to explain away the delay in his appeal. I agree with the Board that the applicant had not shown any reasonable excuse for the delay.

18. The Court of Appeal held in Re Qasim Ali [2019] HKCA 430, 8 April 2019 that regardless of the procedural breaches or the lack of explanation therefor, the Board should take account of the merits of the appeal in its determination of whether there are special circumstances that would make it unjust not to allow the late filing of the Notice of Appeal.

19. The Board has taken into account of the merits of the applicant’s claim. The presiding Adjudicator of the Board in its second decision was also the Adjudicator in its first decision. He had had the benefit of considering the merits of the applicant’s claim in the first decision of the Board. He found the evidence of the applicant unreliable. In any event, there is reasonable state protection and internal relocation a viable option. Even if the alleged facts existed, no substantial risk of torture or CIDTP or persecution could be established.

20. The Board also evaluated the BOR 2 risk and found that there is nothing new in support of such risk. 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.

21. 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.

22. The applicant stated no grounds of the judicial review in Form 86. He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense. Nor was there a challenge with regard to procedural regularity and fairness.

23. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings in both decisions of the Board.

24. Further, even if one gives the claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating at the most a remote and unreal risk of future harm. There was no valid reason why the Shias would still wish to pursue him after so many years, and why his foster father would simply believe mere words of the Shias to believe that he had changed his religion and harm him. The fear of the applicant, if any, are not real or well founded.

25. 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.

26. Having considered the decisions of the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in their decisions. Nor do I see any failure to apply high standards of fairness.”

11.  On 22 March 2021, 6 days after the expiry of the 14-day period for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant filed a summons seeking extension of time to appeal against the Judge’s decision. The applicant explained that he did not get the decision as he had changed his address.

12.  The application came before Deputy High Court Judge Bruno Chan for hearing on 31 August 2021, but the applicant failed to appear. In his decision handed down on 9 September 2021, Deputy Judge Chan stated that the delay was not substantial, but as there was no prospect of success in the intended appeal, he refused to extend time.[6]

13.  By summons dated 19 October 2021, the applicant has now renewed his application for extension of time to appeal against the refusal of leave to apply for judicial review. He did not set out any explanation of his delay or any intended grounds of appeal in the summons or supporting affirmation.

14.  In his written submissions dated 2 November 2021, the applicant outlined the basis of his non-refoulement claim and stated he did not want to return to Pakistan and asked for help for him to stay in Hong Kong.

15.  We consider it appropriate to deal with this application on the papers without a hearing pursuant to Order 59 rule 14A of the Rules of the High Court.

16.  In considering whether to extend time, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice that would be occasioned to the respondent if an extension of time were granted.

17.  Given the relatively insignificant delay of 6 days, we shall concentrate on the merits of the intended appeal. In assessing the merits, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

18.  At the material time, section 37ZT(3) of the Immigration Ordinance provided that: “If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice …” In the present case, the Board explained clearly in the decision in question why it considered that the applicant had failed to show any reasonable excuse for the delay, that there were no special circumstances by reason of which it would be unjust not to allow late filing of the appeal, and that in any event the intended appeal had no merit. The applicant has failed to advance any public law ground for impugning the Board’s decision; nor can we see any error of law, procedural unfairness or irrationality in relation to the Board’s decision. It should be noted that the intended appeal to the Board only related to the Director’s decision on BOR 2 risk. The Director’s decision rejecting the applicant’s claim in relation to the other risks had been upheld by the Board in its earlier decision in November 2016, which found that the applicant had not suffered harm of the requisite degree and that he was dishonest and his evidence was unreliable. The applicant did not apply for judicial review of that decision. In the light of that decision and in the absence of any further information in support of the applicant’s claim in relation to BOR 2 risk (other than what he wrote to the Director on 1 February 2017), the Board’s conclusion on the lack of merit of the intended appeal was inevitable.

19.  The Judge, having carefully examined the decisions of the Director and the Board, came to the conclusion that there was no public law error or failure to apply high standards of fairness towards the applicant. The applicant has wholly failed to point to any error in the decision of the Judge. There is no prospect of success in the intended appeal to this Court. In the circumstances, an extension of time to appeal would be futile and should be refused. Accordingly, the applicant’s summons dated 19 October 2021 is dismissed.

20.  Finally, we note that the applicant claims that he was born in Japan to a Japanese mother. Whether he has Japanese nationality or right of abode as a consequence as a matter of Japanese law (even though the applicant did not believe he was so entitled) would have been relevant had the Director or the Board been satisfied that one or more of the grounds for protection was made out (see section 37W(1) of the Immigration Ordinance), but in the light of the conclusion above it is unnecessary to rely on this as a potential ground for refusing non-refoulement protection. The question may have relevance and will no doubt receive attention if a removal or deportation order is to be made against the applicant.