RE NAZAKAT

CAMP 504/2022, [2023] HKCA 1159

On Appeal From [2022] HKCFI 1702

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 504 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 932 OF 2019)

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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 24 June 2022, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant for leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap. 4A) (“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 applicant did not lodge an appeal in time. He filed a summons in the Court of First Instance on 28 September 2022 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 28 October 2022.

3.  On 30 November 2022, the applicant filed a summons in CAMP 504/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 30 November 2022, the applicant lodged his written submissions on 12 December 2022.

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 applicant is a national of Pakistan. He entered Hong Kong illegally on 7 February 2016 and was arrested by the police the next day. On 10 February 2016, he lodged a non-refoulement claim alleging that if refouled, he would be harmed or killed by his boyfriend Jawad’s family and relatives because of their homosexual relationship. He also feared that he would be harmed or killed by other Muslims elsewhere in Pakistan by reason of his being homosexual. The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2022] HKCFI 1702).

7.  By a Notice of Decision dated 19 March 2018, the Director of Immigration (“the Director”) decided against the applicant’s 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 applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The applicant attended an oral hearing on 22 October 2018 and by its decision dated 18 March 2019, the Board dismissed the applicant’s appeal. For reasons set out at [63] – [88], the Board accepted that the applicant was homosexual on the basis of his consistent and credible evidence. It reckoned that LGBTI persons in Pakistan form a particular social group within the meaning of the Refugee Convention, and upon careful consideration of country of origin information on the aspect of homosexuality, it concluded that violence and discrimination existed against LGBTI persons in Pakistan and that although the applicant had never been harmed by the authorities, state protection would not be available. The Board then assessed whether internal relocation is a viable alternative for the applicant. On the evidence, the Board was satisfied that the applicant had previously adapted his lifestyle to cope with social pressure of his family, community and religion, and therefore, it found that if the applicant relocated to a large area far from his original locality, he would be able to conceal his sexuality in the same way as he had previously done. In light of the aforesaid findings, the Board found that internal relocation was a viable option for the applicant to avoid risk of harm and it rejected the applicant’s claim on all applicable grounds.

Application for leave to start judicial review

9.  On 4 April 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision. He did not provide any valid grounds for relief in his Form and the supporting affirmation save for saying that the immigration officer did not know the real situation of Pakistan and many asylum seekers were killed after returning to Pakistan. He requested to be allowed to stay in Hong Kong.

The JR Decision

10.  The applicant failed to attend the scheduled hearing on 11 May 2022 without any explanation and the Judge proceeded to dispose of the application on paper. After due consideration of the decisions of the Director and the Board, the Judge refused to grant leave to apply for judicial review with reasons set out in [12] - [17] of the JR 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 Decisions 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 Board had considered his case carefully, having considered the country of origin information and giving sufficient reasons in support it conclusion. The reasons raised by the applicant are not valid reasons to challenge the Board’s Decision. It is not necessary to visit the applicant’s country in order to understand the situation there as the adjudicator had made reference to the country of origin information. The fact the other asylum seekers were dead after returning to their countries may be due to various reasons, not necessarily related to the applicant’s case.

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. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time. He filed a summons in the Court of First Instance on 28 September 2022 for an extension of time to appeal. That was dismissed by the Judge on 28 October 2022. Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appeal, 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).

13.  As for (1), the applicant was late by more than 11 weeks between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance. His delay was substantial.

14.  As for (2), the reasons for the delay, the applicant explained that he did not receive the JR Decision. The court file showed that the JR Decision was sent on the same day it was handed down to the applicant’s last reported address (which was the same as the one stated in the summons dated 28 September 2022) and it was not returned as undeliverable mail. The applicant’s bare assertion that he did not receive the JR Decision is not accepted as a valid reason for his delay.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant had failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the JR Decision either in his summons or in his affirmation save for saying that he was not satisfied with the JR Decision.

16.  In his written submissions, he reiterated that he would face a threat to his life from his enemy if refouled. However, he said the Director and the Board had rejected his non-refoulement claim, and the Court of First Instance and the Court of Appeal (sic) dismissed his application. He urged the Court of Final Appeal (sic) to give him permission to proceed with his appeal.

17.  It is clear from the Board’s decision that it had thoroughly considered the applicant’s case and accepted that he is homosexual. However, it found that the applicant had been able to live discreetly and safely in Pakistan before, and therefore, he would be safe if he relocated to a large area far from his locality. In light of the aforesaid, the Board found that internal relocation was a reasonable and viable option for the applicant to avoid risk and rejected his claim. We do not see any valid public law ground to challenge its decision.

18.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and had rightly dismissed the leave application. We find nothing amiss in the JR Decision.

19.  As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 30 November 2022.