RE RAMZAN MUHAMMAD

CAMP 387/2022, [2024] HKCA 887

On Appeal From [2022] HKCFI 1448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 387 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 236 OF 2019)

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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 September 2022, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 9 August 2022.  By that order, the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 2291) (“the EOT Decision”) against his earlier order dated 2 June 2022 dismissing the applicant’s application for leave to apply for judicial review ([2022] HKCFI 1448) (“the Leave 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 21 January 2019 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 9 January 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 claimed to have last entered Hong Kong illegally on 24 August 2015.  He surrendered to the Immigration Department two days later.  On 4 May 2016, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by Iqbal, a son of his uncle, due to a land dispute where he refused to transfer his share in a house to Iqbal. Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

5.  By the Director’s Decision, 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.  Subsequently, the applicant appealed against the Director’s Decision to the Board.  On 11 December 2018, he attended an oral hearing before the Board.  On 21 January 2019, the Board dismissed his appeal and confirmed the Director’s Decision. The Board’s reasons for its decision were summarised by the Deputy Judge at [9] of the Leave Decision.  In essence, the Board disbelieved the applicant and found his evidence to be confusing and inconsistent.  The Board considered that material aspects of his case had been incredible and unreliable, in particular, in relation to the ownership of the house, the circumstances leading to the dispute between him and Iqbal, and his assignment of his share in the house to borrow money from a creditor[5]. In any event, the Board found that his feared risks were unlikely to materialise and that internal relocation would be available[6].  Accordingly, the applicant failed to prove his case on all applicable grounds and the Board dismissed his appeal.

The Leave Decision

7.  On 25 January 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  No ground of review was given in the Form 86.  In his supporting affirmation, he asserted that the immigration officer assessing his non-refoulement claim made some factual mistakes and made the decision rejecting his claim before reading his story.  He claimed that the immigration officer had no idea about his enemy who was influential and powerful in Pakistan.  He also complained that the immigration officer asked questions not related to his claim.  He also raised complaints as to the quality of the interpretation services provided to him during the interview with the immigration officer and the lack of time for his preparation for the interview because the bundle was sent to him only ten days before the interview.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out at [12] ‑ [17] of the Leave Decision:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.’

15. The grounds raised by the applicant, in my view, do not assist his application. It is only his opinion that the immigration officer did not read his story before he made his decision. The immigration officer does not have to visit his country because he can make reference to the country of origin information complied by other countries about Pakistan. Whether the questions put to him are relevant is for the immigration officer to decide, not the applicant. In any event, at the screening stage, the application was legally represented. If he was not satisfied with the procedures, he should instruct his lawyer to make representation or objection to the immigration officer. On the record, there was no such objection before the immigration officer at the screening stage. His complaint about the interpreter at the screening interview was not recorded in the Director’s Decision. His complaint against the adjudicator for asking irrelevant question is only his opinion. There was no application before the Board that he was not given sufficient time to prepare his case for the hearing. He said that he does not understand English. However, he had prepared his grounds in English. He did not say that the grounds were prepared by his friend.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

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 19 July 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 over one month late with his intended appeal.  In both his summons and supporting affirmation, he merely stated that he did not receive the decision in time, without providing any ground in support of his application.

11.  By the EOT Decision, the Deputy Judge considered that the applicant was unable to show any realistic prospect of success in his intended appeal.  Accordingly, the Deputy Judge refused his application for extension of time to appeal.

The Present Application

12.  By a summons and a supporting affirmation (attaching a two‑page written statement) both filed on 28 September 2022, the applicant applied for leave to appeal against the EOT Decision.  In his summons, he repeated that he did not receive the letter from the court in time.  In his supporting affirmation, he merely stated that he did not agree with the two decisions made by the court.  In addition, the applicant exhibited to his affirmation copy of a certificate of marriage dated 22 September 2022 showing that he was married to a woman named Lau Tin Lok Anka[7].  However, he had not explained the relevant of this certificate. In his written statement, the applicant essentially complained that the court did not give a result favourable to his claim.

13.  Contrary to the directions made by the Registrar of Civil Appeals on 28 September 2022, the applicant did not lodge any written submissions.

Discussion

14.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

15.  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].

16.  We consider that the applicant’s delay of over one month as substantial and the applicant simply failed to give any good reason for his delay.  The court record shows that the Leave Decision was posted on 2 June 2022 to the applicant’s then reported address which was the same as stated in the Form 86 and was not returned undelivered.  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].

17.  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].

18.  Nowhere in his summons or supporting affirmation for the present application did the applicant identify any errors committed by the Deputy Judge in the Leave Decision.  His complaints are general and bare assertions without any specific particulars, elaboration or evidence in support.  They do not constitute viable grounds of appeal and there is clearly no basis to disturb the Leave Decision.

19.  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 September 2022 is dismissed.