RE KANWAL GULNAZ

CAMP 240/2019

[2021] HKCA 636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 240 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 973/2017)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 20 July 2018 refusing 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 dated 20 October 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 23 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  She entered Hong Kong in around May 2012 illegally and later surrendered to the authorities on 13 January 2015.  She lodged a non-refoulement claim on 20 May 2015. 

3.  The applicant’s claim was based on threats from her paternal uncle over a land dispute.  The details of the applicant’s claim have been summarised by the Board at [3] to [10] in the Board’s decision and the judge at [2] to [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 23 June 2017 (“the Director’s Decision”), the director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 20 September 2017, the Board dismissed the appeal on 20 October 2017 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [42] to [44] of the Board’s Decision, the Board found that the applicant’s evidence was full of inconsistencies and incredible. The Board was also satisfied at [63] that state protection would be available for the applicant and at [64] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a form 86 on 29 November 2017 which contained the following grounds for judicial review, as summarized by the judge at [9] of CALL-1 Form:

(a)  that the Director failed to give proper weight to the presence of state acquiescence when the applicant was tortured with the collusion of the police and the state law enforcement agencies in the consideration of her claim;

(b)  that the Director failed to take into proper account of the relevant COI in the consideration of her claim;

(c)  that the Director failed to give sufficient weight to the ineffectiveness of the police in Pakistan to protect its citizens in the consideration of her claim;

(d)  that the Director failed to take into account of the relevant COI in the consideration of her claim;

(e)  that the Director failed to take into account of the serious problems of corruptions and incompetency of the state or government of Pakistan in the consideration of her claim;

(f)  that the Director failed to apply high standard of fairness in the consideration of her claim and therefore his decision was Wednesbury unreasonable in the public law sense; and

(g)  that the Board failed to make sufficient enquiry into her case before reaching the decision and failed to give her sufficient chance to provide relevant evidence in support of her claim.

8.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [10] to [13] of the CALL-1 Form:

“ 10. These are all very broad and vague assertions of the applicant containing numerous key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in their decisions, or in what way did the Director fail to take into account of relevant COI, or what is the relevancy of state acquiescence or collusion to her claim when there was never any evidence of any involvement of the state or police in her uncle‘s actions. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any basis or merits in any of them.

11. As it has clearly been found and accepted in the decisions of both the Director and the Board that the risk of harm from the applicant’s uncle is a localized one, and that it is not unreasonable or unsafe for the applicant to relocate to another part of Pakistan, there is simply no justification for affording her non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

12. In the premises and having proceeded to consider 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.

13. 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 her leave application.”

Application for extension of time to appeal and grounds for appeal

9.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  She failed to do so.  By a summons dated 11 September 2018, the applicant sought leave to appeal out of time.  Her application was dismissed by the judge on 31 October 2018.

10.  By a summons dated 2 October 2019, the applicant renewed her application for an extension of time to appeal before this court. 

11.  In her affirmation of the same day filed in support of her application, the applicant advanced the following grounds of appeal, which can be summarised as follows:

(a)  There is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review;

(b)  The Director and the Board did not see the grounds to reverse their decisions; and

(c)  The applicant was in prison and did not receive the decision.

12.  In her skeleton submissions dated 22 October 2019, the applicant submitted that the Board acted in a procedurally unfair manner in that it did not properly assess her credibility.

Discussion

13.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

14.  The applicant claimed that she did not receive the CALL-1 Form because she was in a prison.  She did not give any details as to the period of her incarceration.  The CALL-1 Form was sent by post to the address she resided at after her release from prison prior to March 2018.  She used the same address in her summons of 11 September 2018 and affirmation of 10 September 2018.  Though she was subsequently imprisoned after her arrest on 20 September 2018 and a sentence passed on her, she was not imprisoned when the CALL-1 Form was sent to her on 20 July 2018.  She actually produced a copy of the covering letter and the CALL-1 Form as exhibit 1 in her affirmation of 10 September 2018.

15.  In our view, the applicant has not provided any satisfactory explanation for her delay.  The court will only grant extension of time if his appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re MA [2019] HKCA 1020.

16.  The grounds of appeal set out in the submissions alleged un-particularized errors on the part of the Board.  The submissions did not engage with the reasons given by the judge in refusing to grant leave and failed to identify any error on the part of the judge.  As this Court has often stated, an appeal is not a further opportunity to regurgitate what had been advanced but rejected in the court below.  In an appeal to this court, it is necessary for the applicant to identify errors made by the judge.  The skeleton submissions do not provide any viable grounds of appeal in this respect.

17.  Further, the allegations of the applicant against the Board were general assertions without particulars.  Having read the Board’s Decision, we cannot find any public law ground for the court to interfere by way of judicial review.

18.  As we do not see any prospect of success in the intended appeal, we will not grant extension of time for a hopeless appeal. The summons of 2 October 2019 is dismissed accordingly.