RE SHAHID IQBAL

CAMP 217/2021

[2021] HKCA 1585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 217 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1247 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 2 July 2020[1] refusing to grant the applicant leave to apply for judicial review, and refusing to extend the time for doing so, against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 9 February 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 7 July 2017 rejecting the applicant’s non‑refoulement claim.

2.  On 3 June 2021, the Judge refused to grant an extension of time for the applicant to appeal against the Judge’s decision of 2 July 2020.

Background

3.  The applicant is a Pakistani national.  He surrendered himself to the Immigration Department on 12 February 2014, having entered Hong Kong illegally.  He raised his non‑refoulement claim on 5 March 2014.  In August 2017 he married his wife who had given birth to their son in June 2017; both his wife and son are Hong Kong permanent residents.

4.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by the local Jirga (tribal council) in his home village, because he had refused to enter into an arranged marriage with his cousin.  The factual background of the claim was set out at [9] of the Board decision.

5.  By notice of decision dated 7 July 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 28 December 2017, during which the applicant gave testimony and answered questions from the Board.  The Board found that the applicant was not a credible witness, due to the vagueness in his factual account as well as material inconsistencies in his evidence and his non‑persuasive explanations for vague or inconsistent aspects of his evidence.  As a result, the Board rejected most of the applicant’s factual account and found there was no real risk of harm in the event of refoulement. The Board also considered that the applicant’s marriage to a lady with a right of abode in Hong Kong and the birth of their son did not create any new or cumulative grounds on upon which he could establish his claim for non‑refoulement. The Board dismissed the applicant’s appeal on 9 February 2018.

The Judge’s decisions in the court below

7.  Almost 5 months later, on 3 July 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his supporting affirmation, the applicant raised a number of grounds for judicial review, summarized by the Judge at [10] of the Form CALL‑1.

8.  Following a hearing on 9 August 2019 at which the applicant appeared before the Judge, on 2 July 2020 the Judge refused to grant leave for judicial review.  The reasons for refusing leave were set out in [10]‑[17] of the Form CALL-1 as follows:

“ 10. On 3 July 2018 the Applicant filed his Form 86 for leave to apply for judicial reviewof both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge as summarized:

(1) procedural unfairness in the Director’s failure to provide him with further screening interview before the determination of his claim;

(2) irrationality in the Director’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;

(3) irrationality in the Director’s failure to properly evaluate the effectiveness pf the Pakistani police to protect the citizens due to corruptions and inability to implement law and order in Pakistan;

(4) procedural unfairness in the Director to provide him with the hearing bundle for his appeal before the Board without explaining the documents to him; and

(5) procedural unfairness in the Board’s rejection of his claim without explaining its decision to him.

11. By then the Applicant was however late with his application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review 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.

12. As the last day of the three‑month period for the Applicant to file his Form 86 fell on 9 May 2018, he was therefore seven weeks late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1;and AW v Director of Immigration [2016] 2 HKC 393.

13. In the Applicant’s case, a delay of seven weeks must be considered as significant,for which he explained at the hearing of his application that he was sick with cold and fever at that time but was unable to provide any particulars or evidence as to exactly when and for how long was he sick, of which I note was the same reason given for his failure to attend the screening interviews before the Immigration Department, and in the absence of any supporting medical evidence of any serious or chronic health problem in the Applicant, and given the relative minor nature of his alleged sickness and that according to the available materials before the court that he was otherwise a relatively healthy and able‑bodied young adult, I am not satisfied with his explanation and do not accept that he has provided any good reason for his delay.

14. As for the merits of his intended application, I find his proposed grounds mostly just broad and vague assertions containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, or in what way did the Director fail to take into account relevant COI or being selective or improperly rely on irrelevant COI. Given the fact that he had been repeatedly given further opportunities to attend the re-scheduled screening interviews arranged by the Director for him but which he repeatedlyfailed to do so without any acceptable reason, and that he was subsequently given a list of questions in lieu when he was able to answer with the assistance by DLS, and of which he was subsequently able to express his such grievances during his oral hearing before the Board in his appeal which was treated as a rehearing of his claim and with assistance by an interpreter. In the circumstances I do not find any basis or merit in any of these complaints of the Applicant, or that any of them is reasonably arguable for his intended challenge.

15. Essentially his claim was rejected by the Board on its adverse finding on his credibility as to his claimed fear of harm for the thorough and detailed analysis and reasoning set out in paragraphs 30‑43 of its decision and with the benefit of hearing him in evidence and in answers to questions raised of his claim during the oral hearing of his appeal, and in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant,I do not finding anymerit in his intended application or any reasonably arguable basis to challenge the finding of the Board.

16. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonableor unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board,there is simply no justification to afford him with non‑refoulement protection in Hong Kong:see TK v Jenkins & anor [2013] 1 HKC 526.

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.”

9.  More than 6 months later, on 19 January 2021, the applicant took out a summons to seek an extension of time to appeal against the decision of the Judge.  In his summons and supporting affirmation, he explained that he did not receive a copy of the judgment until early January 2021, and that he thought his case was not properly listed.

10.  The Judge held a hearing for the summons on 20 May 2021, which the applicant attended.  In his decision dated 3 June 2021,[6] the Judge noted at [2] and [4] that the intended appeal was late by more than 6 months which was a very substantial delay.  Although the applicant explained that he did not receive the decision of 2 July 2020 until January 2021, he did not provide any details or evidence to corroborate his explanation.  The Judge noted that the decision had been sent to the applicant’s last reported address without being returned undelivered, and was not satisfied that the applicant had provided any good or valid reason for his delay.

11.  The Judge also noted that the applicant did not provide any proper or valid draft or proposed ground of appeal, or any particulars of alleged errors in the decision, or why it might be reasonably argued that the decision was unfair or unreasonable.  As the Judge did not see any reasonable prospect of success in the intended appeal, he dismissed the summons.

The renewed application before this Court

12.  On 15 June 2021, the applicant took out a summons seeking leave from this Court to appeal out of time against the decision of the Judge dated 2 July 2020 refusing leave for judicial review.  In his summons, he stated that as he failed to appear, he did not get the High Court judgment.  He did not set out any proposed grounds of appeal.

13.  The applicant lodged his written submissions on 29 June 2021.  In those submissions, he stated that the Jirga members always took bribes and had decided to kill him, that he would not receive any help from the Pakistan authorities, that relocation within Pakistan was impossible for him, that his relative had been killed by the villagers, and no one would help him if the village committee killed him in future.

14.  However, the applicant did not identify, or provide any details or particulars of, any alleged errors made by the Board or the Judge.

Legal principles

15.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless an extension of time is granted.  In considering whether to extend time, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

16.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court will still examine if the intended appeal has merits, in terms of whether there is a reasonable prospect of success in persuading this Court to reverse the decision of the judge: Re Saqlain Muhammad [2018] HKCA 346.

17.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non‑refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review. 

Discussion

18.  In the present case, the applicant’s intended appeal was late by more than 6 months.  As the Judge found, the applicant had not provided a good reason for the delay.

19.  As mentioned above, the applicant did not set out any grounds of appeal in his summons, and has failed in his documents or submissions to identify or provide particulars as to any specific alleged errors in the Judge’s decision, or identify any other specific potential grounds for reversing the Judge’s decision. 

20.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there are no such grounds that point to any error by the Judge, the appeal should be dismissed.

21.  In the present case, the Board rejected the applicant’s claim for non‑refoulement protection due to its adverse finding on his credibility, which resulted in the Board rejecting most of his factual account and finding that there was no real risk of harm in the event of refoulement.  These findings were open to the Board to make on the evidence before it.  The court will not interfere with such assessments unless they are vitiated on public law grounds.  The Judge found that no such grounds had been made out.

22.  The points raised in the applicant’s summons and submissions wholly fail to engage with the Board’s reasons for rejecting his claim as well as with the Judge’s reasons for refusing leave for judicial review.  The applicant has failed to identify any specific error in the Judge’s decision of 2 July 2020.

23.  The fact that the applicant’s wife and son are Hong Kong permanent residents is not a valid ground for judicial review of the Board’s decision or a valid ground of appeal to this Court.  It is noted that at the hearing before the Judge on 20 May 2021, the applicant mentioned that he has a dependent visa application that is under processing.  That however does not affect the validity of the Judge’s refusal of leave for judicial review of the Board’s decision.

24.  Having considered the materials before us, we are of the view that the Judge’s observations are justified and that there was no reasonably arguable ground for judicial review.  The Judge was right to refuse leave.

25.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 15 June 2021 is dismissed accordingly.

[1] [2020] HKCFI 1319, HCAL 1247/2018.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6] [2021] HKCFI 1481, HCAL 1247/2018.