RE MUHAMMAD AZAM AND ANOTHER

CAMP 86/2021

[2022] HKCA 1130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 86 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1474 OF 2018)

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J U D G M E N T

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

1.  On 9 July 2020, DHCJ Bruno Chan (“the Judge”)  refused to grant leave to the 1^st and 2^nd applicants (collectively called “the applicants”)  for judicial review concerning their non-refoulement claim (“the JR Decision”)  and dismissed their leave application. Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicants did not lodge their appeals in time.  They jointly filed a summons in the Court of First Instance on 17 September 2020 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 9 March 2021.

3.  On 17 March 2021, the applicants filed their summons in CAMP 86/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.  As A2 is a minor, on 10 May 2021, the Registrar of Civil Appeals directed that steps should be taken on behalf of A2 as soon as possible to comply with Order 80 rule 2 RHC, including an application for legal aid.  However, that direction was not complied with.

4.  Accordingly, on 18 August 2021, the Registrar proceeded to give directions for the Summons.  In compliance with those directions, the applicants lodged their written submissions on 30 August 2021.

5.  Under Order 59 r. 14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The 1^st applicant (“A1”)  is a national of Pakistan.  He last arrived in Hong Kong on 22 March 2003 with permission to remain as a visitor up to 5 April 2003.  However, he did not depart and overstayed.  He was arrested by police on 26 October 2007.  He was referred to the Immigration Department for investigation.  He was subsequently convicted of the offence of breach of condition of stay and was sentenced to a 4 months’ imprisonment.  He was released on recognizance on 12 January 2013.  On 6 June 2014, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or even killed in revenge by the family of Abdul Qadeer (“AQ”), a friend of his whom he accidentally shot dead in January 1990.  After A1’s torture claim was rejected, he then sought non-refoulement protection on the same basis, and when his son the 2^nd applicant (“A2”)  was subsequently born in Hong Kong on 10 May 2016, he also raised a non-refoulement claim for and on behalf of A2 on 6 September 2016.  The factual background of this case was succinctly summarised by the Judge at [2] – [8] of the JR Decision ([2020] HKCFI 181).

7.  By the Notice of Decision dated 23 February 2017, the Director of Immigration (“the Director”)  decided against the applicants’ claims.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicants appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  A1 attended an oral hearing on 4 May 2018 and by its decision dated 5 July 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [34] to [44], the Board accepted that A1 might have accidentally killed AQ in an accident but he had paid compensation to AQ’s father and settled the matter.  The applicant was acquitted of the charge of murder when AQ’s father told the court that his family had forgiven him.  The Board found that his allegation that AQ’s brother wished to take revenge some 10 years after the incident was unbelievable, evasive and inconsistent. He was not considered a reliable and truthful witness.  His credibility was further undermined by his failure to raise his claim upon arrival in Hong Kong until after he was arrested by police which was more than 4 years after he came to Hong Kong.

9.  The Board, in [45] to [65] of its decision, considered and assessed the claimed risk of A1 and A2 under all applicable grounds.  The Board found that even on A1’s account of events, he did not suffer any serious injury from the incident of assault by his enemies in 2000 and the claimed risk was a localized one without any state involvement. Further, after he left his home village and moved to Lahore and Mohallah Kachi Pathomand for about 2 years before leaving Pakistan for Hong Kong, he did not encounter any problem with his enemies even though he returned home about 10 times, staying 1-2 days each time.  The Board took the view that the low intensity and frequency of past ill-treatment from A1’s enemies is indicative of the low level of risk upon the applicants’ return to Pakistan.  In any event, there is reasonable state protection and A1 and A2 can reasonably and safely relocate to other cities of Pakistan.  For the aforesaid reasons, the applicants’ claims for non-refoulement protection failed on all applicable grounds.  There was no separate consideration of A2’s case as at that time, the Court of Appeal had not given its judgment in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 (as to which see paragraph 17 below).

Application for leave to start judicial review

10.  On 26 July 2018, the applicants filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  In A1’s supporting affirmation, he repeated his claim that his life would be in danger if he returned to his home country, and that he was not satisfied with the Board’s decision in dismissing the appeal without conducting proper inquiries from reliable sources or fully studying their case.

The JR Decision

11.  A1 attended an oral hearing on 20 November 2019.  After due consideration of the decisions of the Director and the Board, the Judge refused to grant leave to apply for judicial review for reasons set out in [14] - [18] of the JR Decision:

“14.  On 26 July 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date he merely repeated his claim that his life would be in danger if returned to his home country, and that he was not satisfied with the Board’s decision for dismissing their appeal without conducting proper inquiries from reliable sources or fully studying their case and the consequences of them being forced to return to their home country, but without providing any details or particulars as to how the Board has so erred in its decision.  As such and in the absence of any error of law or procedural unfairness in the Board’s decision being clearly identified by the Applicants with sufficient particularity, I do not find this complaint reasonably arguable for their intended application.

15.   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.

16.   In the Applicants’ case, the Board rejected their claim essentially on its adverse finding on A1’s credibility for the thorough and detailed analysis and reasoning set out in paragraphs 34 – 44 of its decision and with the benefit of hearing his oral evidence and answers to questions raised of his claim during the appeal hearing, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.   Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Pakistan, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.   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 Applicants’ claim.”

Again, there was no separate consideration of A2’s case as Fabio Arlyn Timogan had not been decided.

Application for extension of time to appeal the JR Decision

12.  As mentioned earlier, the applicants failed to file a notice of appeal within time.  They filed a summons in the Court of First Instance on 17 September 2020 for an extension of time to appeal.  That was dismissed by the Judge on 9 March 2021.  Hence, the Summons to this court.

Discussion

13.  In considering whether to extend time for appealing, the Court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of success of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).

14.  As for (1), the applicants were late by 25 days between the deadline for filing their appeal against the JR Decision and the summons filed in the Court of First Instance, not counting August: section 31 of the High Court Ordinance.  The delay was not insubstantial.

15.  As for (2), the reasons for the delay, A1 explained to the Judge at the hearing that they never received the JR Decision in the mail, and he was therefore not aware of it until sometime in September 2020 when they were informed by the immigration officer about the JR Decision.  However, the court file showed that the JR Decision was sent to the applicants’ last reported address on the same day as it was handed down and the address was the same as shown in the summons and it was not returned through the post.  Thus, the Judge was not satisfied that there was any good reason for the delay.  We agree with the Judge’s decision.

16.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicants did not provide any grounds of appeal against the JR Decision.  A1 just repeated his claims that as he had been staying in Hong Kong for many years, he should be allowed to remain here.  In so far as A1 is concerned, the Judge did not find any realistic prospect of success in the intended appeal.

17.  Nevertheless, the Judge was mindful of the fact that A2 is a minor and was not legally represented in these proceedings as required by Order 80, rule 2 of the Rules of the High Court (“RHC”), nor in his appeal before the Board.  The Judge, guided by the approach in the Court of Appeal case of Fabio Arlyn Timogan, then separately considered and examined whether there were matters that might support potential minor-specific non-refoulement bases in favour of A2 that could have been advanced before the Board had there been legal representation.

18.  Upon his careful review of the JR Decision as well as the Board’s decision, the Judge found that A2’s claim was premised fundamentally on A1’s claim, and even putting A1’s case at the highest, it was plain that the threat of revenge was directed only against A1 in Pakistan some 26 years before A2 was born in Hong Kong.  There was no evidence that A1’s enemies would know about A2, let alone form any intention to harm him.  The Judge also did not find any material that might give rise to any concern of any non-refoulement grounds which relate specifically only to A2.  The Judge hence concluded that the non-compliance with Order 80, rule 2 of RHC as a mere irregularity and A2’s intended judicial review was in any event without merit.

19.  Accordingly, the Judge concluded that there is no realistic prospect of success in both applicants’ intended appeals and refused extension of time.

20.  In the applicants’ summons and A1’s supporting affirmation filed in this Court, there were no grounds to support reversal of the JR Decision, save for A1 repeating his excuse for the delay in filing an appeal against the JR Decision.

21.  In A1’s written submissions, he quoted passages from ST v Director of Immigration[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing his credibility.  Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115)  which concerns the late filing of a notice of appeal to the Board. However, he did not explain how the aforesaid cases and legal provisions were related or would assist his case.

22.  In A1’s application, he has failed to provide any ground of appeal, or identify errors in the JR Decision in his summons or written submissions to this court, and as such his application is bound to fail.

23.  Regarding A2’s application, having considered all the materials and evidence, we are satisfied that the Judge, having separately considered A2’s position as a minor and applied the approach set out in Fabio Arlyn Timogan, has rightly found that there is in any event no merit in A2’s application.

24.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

25.  As the intended appeals are unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicants’ summons filed on 17 March 2021.