RE MUHAMMAD NADEEM KASHIF

CAMP 372/2022; [2023] HKCA 881

On appeal from [2022] HKCFI 407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 372 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1295 OF 2019)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 8 February 2022[1] refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation to support his application and lodged a written submission pursuant to the directions given by the Registrar of Civil Appeals.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the papers filed in the application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Pakistan aged 43.  He last arrived in Hong Kong on 26 July 2003 and was permitted to remain as a visitor for 14 days.  He overstayed and was arrested by the police on 5 June 2007.  On 19 June 2007, he made a torture claim[2], which was rejected on 4 November 2010.  His petition against the decision was dismissed on 20 December 2010.  On the same date, he married a Hong Kong permanent resident.  On 15 June 2011, he submitted an application for dependant visa, which was closed on 12 July 2011 as his wife withdrew from the application. The applicant was repatriated to Pakistan on 19 July 2011.  He submitted another dependant visa application on 5 September 2011 and the same was closed on 5 September 2014 due to no response from his wife. 

6.  Subsequently, the applicant sneaked into Hong Kong from Guangzhou.  He was arrested by the police on 20 January 2016.  He raised a non-refoulement claim based on fear of being harmed or killed by the Shia Muslims due to difference in religious beliefs as he was a member of Sipah-e-Sahaba Pakistan (“SSP”).  The details of the applicant’s claim were set out in the decision of the Director at [13].  We will not repeat them.

7.  By his decision dated 30 November 2016, the Director rejected the applicant’s claim having regard to the torture risk[3], BOR 3 risk[4], persecution risk[5] and BOR 2 risk^[6] grounds.  The assessment under the torture risk, notwithstanding the applicant’s previous torture claim, was permitted as the Director accepted there was a change of circumstances after he was repatriated to Pakistan.

8.  The applicant appealed the Director’s decision to the Board.  The Board heard the appeal at an oral hearing held on 9 April 2018, during which the applicant gave evidence and answered questions put by the Board.  By its decision dated 20 April 2018, the Board dismissed the appeal. 

9.  From background information from various sources available to it, the Board found that: (1) SSP was a terrorist organization banned in Pakistan since 2002, and in the United Kingdom since 2001; and (2) contrary to the applicant’s assertion and instead SSP members being at risk of being harmed by Shia Muslims, it was the Shia Muslims who were persecuted and at risk of being harmed by the SSP.  The Board accepted that the applicant was an active member of the SSP, and rejected his assertion that he wished to dissociate himself from the SSP or that he was at risk of being pursued by Shia Muslims.  The Board also noted that the applicant had waited some 3 years after his first arrival in Hong Kong to raise his non-refoulement claim, and considered this was inconsistent with someone seeking asylum. The Board concluded that the applicant did not have a genuine fear of persecution.  The Board further held that internal relocation options were reasonably available which would reduce or negate any risks faced by the applicant.  The Board held that the applicant’s claim failed on all applicable grounds.  

10.  On 14 May 2019,[7] the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.   Order 53 rule 4 of the Rules of the High Court provides that application for leave to apply for judicial review shall 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.  The applicant’s Form 86 is out of time by about ten months.  He did not provide any explanation for the delay nor put forward any specific ground for seeking relief.   

11.  The Judge considered the application on paper.  By a Form CALL-1 dated 8 February 2022, he refused to extend the time for applying for judicial review and dismissed the application for leave to apply for judicial review.  He gave his reasons at [14] to [19] as follows:

“14. In the Applicant’s case, a delay of almost 10 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation either in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his serious delay.

15. As for the merits, if any, of the intended application, as noted above the Applicant has failed to put forth any proper ground for his intended challenge, 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 or any merits in his intended application either.

16. 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.

17. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 17 – 59 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.

18. The fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if true 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.

19. 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.”

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. 

13.  By a summons filed on 21 April 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge listed the application for an oral hearing, but the applicant failed to attend the oral hearing fixed on 7 September 2022 before the Judge and thus the application was considered on the papers.  By his decision handed down on 21 September 2022[8], the Judge refused the application.

14.  On 23 September 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.  

15.  In considering whether to extend the time for appeal, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

16.  The applicant was two months late when he made the application for extension of time to the court below.  The delay is substantial.  In his summons and affirmation filed in the court below, the applicant explained that he did not receive the judgment and court order “within reasonable period of time”, without any elaboration.  The Court record shows that the Form CALL-1 was posted to the Tung Tau Correctional Institution where the applicant was remanded[9] and had not been returned by the Post Office.  In the circumstances, we are not satisfied that the applicant has satisfactorily explained the delay.  In view of the undue and inordinate delay, the applicant must show that the intended appeal enjoys a real prospect of success.  

17.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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 it is a fresh application for judicial review.

18.  The applicant did not provide any ground in support of his intended appeal in the summons nor in his affirmation.  He merely stated that he disagreed with the decision of the court and wanted to appeal to the Court of Appeal.    

19.  In his written submission, the applicant stated that he left Pakistan because his life was under threat, and that his enemy was very powerful and had paid the police and the authority.  He further complained that the Board did not believe his claim, there were many errors in the processing of his case and the Judge’s decision was incorrect.  There were, however, no particulars in support of the complaints.   

20.  We are of the view that what was put forward by the applicant does not constitute viable grounds of appeal. They are general assertions that do not identify any specific error in the Judge’s decision. 

21.  We have separately considered the Board’s decision.  We do not discern any error of law, irrationality or procedural irregularity or unfairness.  We agree with the Judge that the intended judicial review has no prospect of success.

22.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to extend the time for applying for judicial review and dismissal of the application for leave to apply for judicial review has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 23 September 2022.