RE MUSHTAQ IMRAN ALI

CAMP 39/2025, [2025] HKCA 705

On Appeal From [2023] HKCFI 1394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 39 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 457 OF 2022)

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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.  On 26 February 2025, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge To (“the Judge”)  dated 23 May 2023 ([2023] HKCFI 1394)  (“the Leave Decision”)  refusing to extend time and dismissing his application for leave to apply for judicial review.  On 8 December 2023, the Judge refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2023] HKCFI 3134)  (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 15 September 2017 (“the Board’s Decision”)  confirming the decisions of the Director of Immigration (“the Director”)  respectively dated 29 April 2015 (“the Notice of Decision”)  and 6 December 2016 (“the Notice of Further Decision”)  (collectively referred to as “the Director’s Decisions”)rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to 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 previously used different identities to enter Hong Kong in May 2001 and November 2002 respectively and was arrested for overstaying and repatriated to Pakistan in September 2001 and January 2003 respectively.  He last arrived in Hong Kong illegally on 29 September 2009 and was arrested on 4 October 2009.  He lodged a torture claim on 13 October 2009 which was rejected by the Director on 23 November 2010.  His appeal to the Petition Team of the Security Bureau was dismissed on 30 December 2010.  He then lodged a claim for refugee status to the United Nations High Commissioner on 28 July 2011, which was subsequently closed.

5.  On 19 April 2013, he lodged a non-refoulement claim on the basis that he will be harmed or killed if he is returned to Pakistan by members of the Pakistan Muslim League – Nawaz because of his support for the opponent party, Pakistan Muslim League – Quaid-e-Azam.  Details of the applicant’s claim were summarised by the Judge at [12] - [18] of the Leave Decision.

6.  By the Director’s Decisions, the Director rejected the applicant’s non-refoulement claim on all applicable grounds other than the risk of torture[1], namely BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

7.  The applicant subsequently appealed against the Director’s Decisions to the Board.  The applicant was absent at the hearing before the Board on 17 March 2017: see [16] of the Board’s Decision.  By the Board’s Decision, the Board dismissed his appeal and confirmed the Director’s Decisions.  The Board’s reasons were summarised by the Judge at [19] - [21] of the Leave Decision:

“19. The Board scheduled an oral hearing on 17 March 2017 to enable the Applicant to supplement his evidence. The Applicant did not turn up. He did not respond to the Board’s letter requesting explanation for his absence. Therefore, the Board assessed his claim on the basis of the information before it. The Board found the Applicant’s evidence unreliable. It also found his behaviour since his arrival in Hong Kong inconsistent with someone who truly wanted non-refoulement protection. The behaviour included his disrespect for the law in overstaying in Hong Kong after each of his entries, his involvement in criminal activities, his failure to attend court hearing. More importantly, he made misrepresentation in his Supplementary Claim Form by stating that he was working in Pakistan from 2000 to 2003 when immigration record showed he was actually in Hong Kong on two occasions in 2001 and 2002. The Board found him exaggerating in his evidence. The Board was not satisfied that he had established the factual basis in support of his need for non-refoulement protection under any of the three remaining applicable grounds under the USM.

20. Furthermore, on the basis of authoritative and credible country of origin information, the Board was satisfied that state protection of an adequate standard is available to protect the Applicant from the feared harm. It was also satisfied that being an able-bodied healthy adult with good education and work experience, he could access internal relocation to avoid the alleged harm and it would not be difficult or unreasonable for him to so relocate himself

21.  Accordingly, the Board dismissed his appeal against the two Notices.”

THE JUDGE’S DECISION

8.  On 10 June 2022, the applicant filed a Form 86 together with a supporting affirmation to apply for extension of time and leave to apply for judicial review of the Board’s Decision. By that time, he was almost 4.5 years late in taking out his application.  No ground of review was given in his Form 86 or supporting affirmation.  On 20 April 2023, the applicant attended an oral hearing before the Judge and an Urdu interpreter was present to provide language assistance.

9.  On 23 May 2023, after considering the applicant’s application, the Judge refused to extend time and dismissed the applicant’s application for leave to apply for judicial review.  His reasons were stated at [24] - [26] of the Leave Decision:

“24.  In the absence of specific or proper grounds of application, the Court could only focus on the usual challenges raised in a judicial review, namely error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. Specifically, the Court does not consider the high standard of fairness requires the Board or the Director to send officers to the risk state to collate evidence to support an applicant’s claim. That would be impracticable. The high standard of fairness would be discharged by obtaining country of origin information from credible and authoritative sources and considering whether the applicant’s claim is plausible on the basis of such information. That was what the Board did. It considered conflicting country of origin information from credible and authoritative sources, including Country of Origin Information Report on Pakistan issued by the United Kingdom Border Agency Home Office, Country Reports on Human Rights Practices for 2013 – Pakistan published by the US Department of State, the Police Organizations in Pakistan issued by the Human Rights commission of Pakistan/Commonwealth Human Rights Initiative on 2010. As for the weight to be given to the information, it is a finding of fact which is a matter solely within the realm of the Board and which this Court may not interfere save for errors of law, procedural unfairness and irrationality in the Decision.

25.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the remaining three applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. However, it found the Applicant incredible and his evidence unreliable. The Board also found that in any event he could avoid or prevent the harm by accessing internal relocation and seeking state protection. It was on that basis that the Board found he had failed to prove the factual basis in support of his claim to non-refoulement protection under any of the remaining three applicable grounds. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. It is utterly without fault. The proposed judicial review has no realistic prospect of success.

26.  The Applicant has no reasonable explanation for the almost four and half years’ delay in applying for leave to apply for judicial review.  His proposed judicial has no realistic prospect of success.  For the above reasons, extension of time for filing his application for the leave to apply for judicial review and the leave application are refused.”

10.  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.

11.  On 15 November 2023, the applicant applied by summons together with an affirmation for an extension of time to appeal against the Leave Decision.  By that time, he was over 5 months late with his intended appeal.  The applicant contended in the summons that he was not satisfied with the Board’s Decision and that it was unfair and he could not go back to his home country as his life would be in grave danger.  In his supporting affirmation, the applicant claimed that he filled in the Notice of Appeal and lodged it with the immigration officer on 20 April 2023 but as he was detained, he was only escorted to court on 21 June 2023.  He later filed his application on 15 November 2023.

12.  By the EOT Decision, the Judge dismissed the applicant’s application for extension of time to appeal against the Leave Decision, as the delay was inordinate and for which the applicant could give no reasonable explanation.  The applicant also gave no particulars where the Judge went wrong in the Leave Decision.  His intended judicial review was an abuse of process and had no prospect of success.  Accordingly, his application was dismissed by the Judge.

THIS APPLICATION

13.  By a summons and a supporting affirmation filed on 26 February 2025 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons, the applicant asked for leave to advance “a new sole ground of appeal” without specifying what the said ground was.

14.  In his supporting affirmation, the applicant stated:

“I am the Applicant herein. Leave me granted to me to appeal against the decision dated the 10^th of February 2023. I would like to appeal out of time as I was unaware of the rules regarding the 14-days’ time limit and was unrepresented. I never received any decision made by the High Court on my residential address, I only got to know about it from my Immigration officer. The decision made by the Deputy High Court TO Lung has been reached unfairly without allowing me an opportunity to clarify my case and the situation in my country. Due to which I was unable to file the Appeal. I humbly request the Court to allow me to appeal out of time.” (sic)

15.  Pursuant to the directions of the Registrar of Civil Appeals dated 26 February 2025, the applicant lodged his written submissions on 10 March 2025.  In those submissions, he cited various legal and case authorities on the high standards of fairness and procedural fairness.  However, the applicant failed to specify how those authorities and legal principles were relevant to his own case.

DISCUSSION

16.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

17.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

18.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

19.  Further, the assessment of evidence, Country of Origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

20.  The applicant’s delay of over 5 months was very significant.  He failed to give any reason, let alone good reason, for his serious delay.  There is also no basis for the applicant to now assert, for the first time and without any supporting evidence, that he failed to receive the Leave Decision, when in the written statement attached to his affirmation filed on 15 November 2023, the applicant expressly stated on oath that “[he] had [his] Judicial Review decision on 23 May 2023”.

21.  In any event, in our view, the present application is devoid of merit.  His allegations are all vague, bare and general in nature.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  He fails to specifically identify any error in the Leave Decision.  Clearly, his assertions are not proper grounds of appeal.  His complaint on unfairness wholly lack basis.  He had ample opportunities to present his own case and country conditions to the Judge through both written and oral submissions in court.  The applicant fails to point out with specific particulars any error in the Leave Decision.  His intended appeal is a nonstarter.

22.  In any event, for completeness, we have considered the Leave Decision carefully and are unable to see any arguable grounds of appeal against the Leave Decision.  The Judge had considered the facts of his case in detail and we agree with the Judge’s observations.  There is plainly no basis to disturb the Leave Decision.

23.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

24.  The reapplication for extension of time to appeal is refused, and the applicant’s summons taken out on 26 February 2025 is dismissed.