RE ZAREED JAMSHAID

CAMP 443/2021

[2022] HKCA 474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 443 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 2917 OF 2018)

_______________

_______________

_______________

J U D G M E N T

_______________

Hon Au JA (giving the Judgment of the Court):

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge P Li (“the Deputy Judge”) dated 10 November 2020 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”) ([2020] HKCFI 2835). An earlier application for extension of time to appeal was refused by the Deputy Judge on 11 August 2021 (“the EOT Decision”) ([2021] HKCFI 2250).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 7 December 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 April 2018 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the papers, 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 entered Hong Kong illegally on 15 December 2015 and surrendered to the Immigration Department on 23 December 2015. He lodged a non-refoulement claim on 10 March 2017 on the basis that he would be harmed or killed by Murad Sahil if returned to Pakistan as he intercepted Sahil’s uncle in a robbery who was later arrested by the police. Details of the applicant’s claim were summarised by the Deputy Judge at [1] - [7] of the Leave Decision.

5.  By a Notice of Decision dated 30 April 2018, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].

6.  The applicant then appealed against the Director’s Decision to the Board. He attended and gave evidence at an oral hearing before the Board on 23 November 2018 with the assistance of an Urdu interpreter. The Board dismissed his appeal on 7 December 2018 and confirmed the Director’s Decision. Having assessed the evidence, the Board found that the applicant was not a witness of truth and that his claim was not credible. The Board also considered that there would not be any real risk if the applicant returned to Pakistan and that internal relocation would be available to him. Accordingly, the Board considered that the applicant failed to substantiate his case on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 19 December 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision. However, no ground of review was provided by the applicant in his Form 86. In his supporting affirmation, he only stated that he did not want to go back to Pakistan as his enemies would kill him.

8.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review. The Deputy Judge did not find any error of law or procedure in both the Director’s Decision and the Board’s Decision and that both decisions were reasonable given the evidence. The Deputy Judge considered that the applicant’s case was not reasonably arguable and there was no reasonable prospect of success. Accordingly, leave to apply for judicial review was refused by the Deputy Judge.

The EOT Decision

9.  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.

10.  On 22 February 2021, the applicant filed a summons (“EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision. By then, he was nearly three months late with his intended appeal. In the EOT Summons and his supporting affirmation, he gave no ground of appeal or reason for his delay.

11.  By the EOT Decision, the Deputy Judge noted that the applicant failed to give any reason for his substantial delay and that there was no merit in the intended judicial review. Accordingly, his application for extension of time to appeal was refused.

The Present Application

12.  By a summons and supporting affirmation both filed on 8 October 2021, the applicant applied for leave to appeal against the Leave Decision. In his summons and supporting affirmation, he again failed to give any reason for his delay or any intended ground of appeal.

13.  Pursuant to the directions given by the Registrar of Civil Appeals on 8 October 2021, the applicant lodged his written submissions on 22 October 2021. In his submissions, he alleged that the leader of the opposition party were the worst people of Pakistan and that he wanted to keep himself safe from them.

Discussion

14.  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].

15.  We consider that the applicant’s delay of nearly three months as substantial and that the applicant has failed to provide any cogent explanation 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].

16.  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].

17.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any error in the Leave Decision with specific particulars. As such, no viable ground of appeal was given by the applicant. The intended appeal must fail on this basis alone.

18.  In any event, the applicant’s general and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal. As repeatedly emphasised by the Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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: 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].

19.  For the above reasons, the intended appeal 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 dated 8 October 2021 dismissed.