RE MUHAMMAD IMRAN

CAMP 535/2022, [2024] HKCA 259

On appeal from [2022] HKCFI 1606

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 535 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2678/2018)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”) dated 23 November 2022 refusing to extend time for the applicant to appeal against his decision dated 1 June 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 9 November 2018 (“the Board’s 2^nd Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 7 February 2017 rejecting the applicant’s non-refoulement claim (“the Director’s 2^nd Decision”).

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 11 December 2007 and was arrested by the police on 22 April 2008.  On 3 May 2008, he lodged a torture claim, which was subsequently processed as a non-refoulement claim under the Unified Screening Mechanism.

3.  The applicant’s claim was based on a fear of being killed or harmed by supporters of the Pakistan People’s Party (“the PPP”).  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of his decision (“the CALL-1 Form”)[1].

4.  By the Director’s Decision dated 2 March 2015 (“the Director’s 1^st Decision”), the Director decided against the applicant’s claim.  The Director’s 1^st Decision covered the torture risk[2], persecution risk[3] and the BOR 3 risk[4].

5.  The applicant appealed to the Board against the Director’s 1^st Decision.  After a hearing on 17 November 2015, the Board dismissed the applicant’s appeal by its decision dated 28 October 2016 (“the Board’s 1^st Decision”).  The Board found the applicant’s evidence to be incredible, the facts on which his claims were based were unsupported by evidence and that the PPP was “very much out of power”, which meant that the risk of harm was low.

6.  By a letter from the Director dated 18 January 2017, the applicant was invited to submit additional facts, if any, for the assessment of his non-refoulement claim under the BOR 2 risk[5].  As the applicant did not respond to this letter, the Director proceeded to assess his claim on the BOR 2 risk based on the documents and evidence already filed.  By the Director’s 2^nd Decision, the Director decided against the applicant’s claim on the BOR 2 risk.

7.  The applicant appealed to the Board against the Director’s 2^nd Decision.  The Board determined the appeal on the papers, and dismissed it by its 2^nd Decision.  As there were no new facts relied upon by the applicant in support of his BOR 2 claim, the Board relied on its findings in its 1^st Decision and concluded that there was no substantial risk that the PPP supporters would kill the applicant should he be refouled.  

The Judge’s decision

8.  The applicant filed a Form 86 on 26 November 2018 seeking to judicially review the Board’s 2^nd Decision, and set out the following grounds for review (as summarised by the Judge at [12] of the CALL‑1 Form):

“(1) Misdirection in law by taking account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Pakistan;

(5) Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirected himself as to the extended meaning of state protection;

(6) Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(9) Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.”

9.  In his supporting affirmation, the applicant recited the procedural history of his claim, and repeated the apparent unfairness in the decisions made by the Director and the Board. 

10.  After summarising the facts and background of the case, and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [18] of the CALL‑1 Form:

“13.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case  or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant who also failed to attend the hearing of his application without any explanation, and as such I do not find any of them reasonably arguable for his intended challenge.      

14.  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.

15.  In the Applicant’s case, the Board having earlier rejected his claim under torture risk, CIDTP and persecution risk on its adverse finding as to his credibility for the analysis and reasoning stated in its first decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim and of which the Applicant has never brought any challenge by way of judicial review or by any other legal process and for which he would have been seriously out of time in any event, and in the absence of any new or additional facts submitted by the Applicant in support of his BOR 2 Claim, the Board was in my view perfectly entitled to exercise its discretion not to hold another oral hearing and to deal with his appeal on paper, and that it was also entirely correct to reject his appeal regarding his BOR 2 Claim for its given reasons.

16.  In any event, on the factual basis of the Applicant’s own case, and due to the limited scope of BOR 2 Risk, the Applicant’s claim simply did not engage the BOR 2 ground. As such, and in the absence of any error of law 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 to challenge the finding of the Board.

17.  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 under the BOR 2 or any of the other applicable grounds.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The present application for extension of time to appeal

11.  The applicant’s address at the time he filed the Form 86 was at 60 Pei Ho Street, Sham Shui Po, Kowloon (“the SSP Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the SSP Address on 1 June 2022, and it was not returned undelivered.

12.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 1 June 2022.

13.  The applicant thereafter took out a summons in the Court of First Instance on 18 July 2022 seeking extension of time to appeal, in which his address was stated to be the SSP Address.  He claimed that he did not receive the court’s letter, and repeated the dangers allegedly posed to him should he return to Pakistan.

14.  In his supporting affirmation filed on the same date, he deposed that his enemies were still pursuing him, and that should he return, his life would be at “serious risk”.

15.  The applicant’s application to appeal out of time was dismissed by the Judge on 23 November 2022[6].

16.  By a summons filed on 13 December 2022, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and his supporting affirmation, the applicant sought an extension of time to appeal against the decision given by the Judge on “23 November 2022”, being the Judge’s refusal to grant an extension of time for him to appeal against his decision dated 1 June 2022.  Although in his summons the applicant purported to appeal against the decision of the Judge dated 23 November 2022, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 1 June 2022, by which leave for judicial review was refused.

17.  In gist, the applicant in the summons contends that the “decisions are unlawful” (without specifying which decisions were alleged to be unlawful, and in what way they were said to be unlawful), these “decisions” failed to take into account “many things and [issues]” (again, without particulars), and that his life would be in danger should he return to his home country.

18.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions on or before 28 December 2022.  He was therefore deemed to have abandoned his right to rely on written submissions.  

Discussion

19.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

20.  As noted above, the Judge’s decision was sent to the last known address of the applicant (which at the time was the SSP Address) and was not returned undelivered.  The inference to be drawn is that he has received the letter from the court, and he has had knowledge of the Judge’s decision within the period which he was permitted to lodge the intended appeal.

21.  Accordingly, we are of the view that the applicant has proffered no satisfactory explanation for the delay of around 5 weeks, which was not insignificant.  The applicant therefore has to show that his intended appeal has a real prospect of success.

22.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its 2^nd Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

23.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

24.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

25.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 13 December 2022 is accordingly dismissed.