RE RANA IMRAN

CAMP 126/2023, [2024] HKCA 221

On Appeal From [2021] HKCFI 3312

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 126 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 177 OF 2020)

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J U D G M E N T

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

1.  By a summons filed on 28 March 2023, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 5 November 2021, refusing his application for leave to apply for judicial review ([2021] HKCFI 3312)  (“the Leave Decision”).  By a subsequent order dated 30 January 2023, the Deputy Judge further refused his application for extension of time to appeal ([2023] HKCFI 256)  (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 13 December 2019 (“the Board’s 2^nd Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 30 December 2016, by which the Director rejected his claim for non-refoulement protection under BOR2 risk[1] (“the Director’s 2^nd Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under 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 entered Hong Kong illegally on 16 July 2007 and was arrested by the police on 18 April 2008.  On 20 April 2008, he was referred to the Immigration Department for further enquiry.  On 28 April 2008, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by Ansar Islam Hashmi (“Ansar”), the husband of his wife’s younger sister, who bore a grudge against him.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] - [3] of the Leave Decision.

5.  By a Notice of Decision dated 19 June 2015 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[2], BOR3 risk[3] and persecution risk[4].  Having assessed all the evidence, the Director considered that his claim failed on all applicable grounds.

6.  On 2 July 2015, the applicant then appealed against the Director’s 1^st Decision to the Board.  On 18 May 2016, he attended an oral hearing before the Board.  By a written determination dated 13 October 2016 (“the Board’s 1^st Decision”), the Board dismissed his appeal.  Having considered his evidence, the Board noted that the dispute was private in nature and that the risk of harm from Ansar would be low given the low intensity and frequency of past ill-treatment towards the applicant.  The Board also considered that internal relocation was a viable option and state protection would be available to the applicant.  Accordingly, the Board dismissed his appeal and reaffirmed the Director’s 1^st Decision.

7.  By the Director’s 2^nd Decision, the Director rejected his claim for non-refoulement protection under BOR2 risk based on the previous materials of his non-refoulement claim as the applicant failed to furnish any additional information for assessment under BOR2 risk prior to the deadline on 29 December 2016.

8.  On 17 January 2017, the applicant lodged an appeal to the Board against the Director’s 2^nd Decision.  The Board did not find it necessary to hold any further oral hearings and considered his application on paper.  By the Board’s 2^nd Decision, the Board further dismissed his appeal.  The Board noted that the applicant failed to provide any additional information for assessment under BOR2 risk and merely stated that his life was still in danger in his home country and that in the year before, his cousin who looked like him was killed.  Based on the previous materials supplied by the applicant for his non-refoulement claim, the Board found that his claim was not substantiated and it was a mere speculation as to the cause of death of his cousin.  Accordingly, the Board dismissed his appeal.

The Leave Decision

9.  On 16 January 2020, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s 2^nd Decision.  The applicant did not advance any ground of review and only stated in his affirmation that the Board disregarded his dangerous situation.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

10.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [10] - [16] of the Leave Decision:

“10. On 16 January 2020 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he rejects the decision as it disregarded his dangerous situation but without providing any details or particulars as to how it did so, nor did he put forth any other proper ground for his intended challenge.

11. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s finding that his claim was irrelevant to any potential claim under the BOR 2 ground, and given the scope and threshold of BOR 2 Risk, as correctly found by the Board, the Applicant’s claim even on the basis of his own case simply does not engage the BOR 2 ground.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective earlier decisions that the risk of harm in his 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.

14. 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.

15. Furthermore, the Applicant recently on 2 September 2021 filed an affirmation requesting to ‘close’ his leave application as he wants to return to his home country.

16.  In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation of his wish to return to his home country, I accede to his request and accordingly dismiss his leave application.”

The EOT Decision

11.  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.

12.  On 17 October 2022, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was almost 11 months late with his intended appeal.  In his summons and supporting affirmation, he only stated that he did not receive the court’s order without further explanation.  As the applicant was absent from the oral hearing on 19 January 2023, the Deputy Judge considered his application on paper.

13.  By the EOT Decision, the Deputy Judge noted that the Leave Decision was sent on the same day to the last reported address of the applicant without being returned through undelivered post, and without any evidence to corroborate his bare assertion, the Deputy Judge was not satisfied that the applicant had provided any good reason for his very substantial and inordinate delay.  Further, the applicant also failed to advance any proper ground  of appeal and there was no prospect of success in his intended appeal. The Deputy Judge therefore dismissed his application for extension of time to appeal.

The Present Application

14.  By a summons and supporting affirmation both filed on 28 March 2023, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons and supporting affirmation, the applicant only stated that he did not receive the sealed order, CALL-1 Form and Judgment within 14 days from 5 November 2021 as they were lost in the post and that he only got the same after searching the Court file.

15.  Pursuant to the directions made by the Registrar of Civil Appeals on 28 March 2023, the applicant lodged his written submissions on 11 April 2023.  In those submissions, the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness were required in the determination of a torture claim.  The applicant further contended that the Board ought to have considered matters such as country conditions of the applicant’s country of origin and that the Board failed to scrutinise the Director’s decision.  He further cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 and contended that the decision maker was under a constitutional duty to act fairly.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.  More importantly, none of his submissions identified any error in the Leave Decision.

Discussion

16.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

17.  We consider that the applicant’s delay of almost 11 months as very substantial and the applicant had failed to give any good reason for his delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

18.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

19.  In our view, this application has no merit at all and must fail.  At the outset, the arguments raised in his written submissions are all new grounds not raised before the Deputy Judge.  It is well established that this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Accordingly, we refuse to entertain his new grounds.

20.  More importantly, and in any event, his written submissions are all general and bare assertions and the applicant did not state how the legal propositions cited are relevant to his case.  He also failed to identify any error with particulars in the Leave Decision.  The applicant already had ample opportunities to advance his case before the Deputy Judge but failed to give any ground in support of his application before the Deputy Judge.  In the premises, none of his submissions are proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

21.  For the above reasons, the intended appeal is a non-starter and has no prospect of success.  It will be futile to extend time. The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 28 March 2023 is dismissed.