RE JAVED MOHSIN

CAMP 160/2023, [2024] HKCA 245

On Appeal From [2022] HKCFI 3263

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 160 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 130 OF 2019)

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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.  By a summons filed on 17 April 2023, the applicant applied to this court for extension of time to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 17 April 2023.  By that order the Deputy Judge refused the applicant’s application for extension of time to appeal ([2023] HKCFI 970)  (“the EOT Decision”)  against his earlier order dated 14 November 2022, refusing the applicant’s application for leave to apply for judicial review ([2022] HKCFI 3263)  (“the Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 10 January 2019 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 13 February 2018, by which the Director rejected his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under 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 last entered Hong Kong illegally on 14 January 2017 and surrendered to the Immigration Department on 16 January 2017.  On 19 January 2017, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by Afzal and members of Pakistan Muslim League (N)  (“PMLN”)  over some land dispute in his home district.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] - [5] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].  Having assessed all the evidence, the Director considered that his claim failed on all applicable grounds.

6.  On 21 February 2018, the applicant appealed against the Director’s Decision to the Board.  On 19 October 2018, he attended an oral hearing before the Board.  By the Board’s Decision, the Board dismissed his appeal.  Having considered the evidence, the Board noted that the land under dispute was still in the applicant’s father’s name and he only stood to inherit the same in the future. Afzal was also killed by another person and there would be no further basis or reason for the applicant to fear harm and in any event it was a private dispute without state involvement.  The Board further found that state protection and internal relocation would be available to the applicant.

The Leave Decision

7.  On 14 January 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  The applicant did not advance any ground of review and only stated in his affirmation that the Board’s decision was unfair and unreasonable and that his life would be in danger if refouled.  The applicant also attended the oral hearing on 19 July 2022 before the Deputy Judge and an Urdu interpreter was present to provide language assistance.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [10] - [14] of the Leave Decision:

“10. On 14 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that the decision is unfair and unreasonable but without providing any details or elaboration why it is so, nor was he able to do so at the hearing of his application other than just repeating his claim as before but without putting forward any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11. 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.

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

13. 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.

14.  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 his leave application.”

The EOT Decision

9.  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.

10.  On 9 December 2022, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was 11 days late with his intended appeal.  In his summons and supporting affirmation, he stated that he did not receive the court’s order on time and further claimed that he disagreed with the Leave Decision without explaining why.

11.  An oral hearing was held on 30 March 2023 and the applicant appeared in person with the assistance of an Urdu interpreter.  During the oral hearing, the applicant submitted a written document which only repeated his claim together with copies of news report as to the political situation in Pakistan.

12.  By the EOT Decision, the Deputy Judge noted that the Leave Decision was sent on the same day to the last reported address of the applicant without being returned through undelivered post.  The applicant’s forgetfulness as to the deadline was not an excuse for the delay.  Although the delay was relatively insignificant, the Deputy Judge considered that the factual basis of his claim was private in nature and there was no error in the Board’s Decision and prospect of success in his intended appeal.  Accordingly, the Deputy Judge dismissed his application for extension of time to appeal.

The Present Application

13.  In his summons and supporting affirmation, the applicant did not advance any grounds in support and merely stated that he failed to appeal on time.

14.  Pursuant to the directions made by the Registrar of Civil Appeals on 17 April 2023, the applicant lodged his written submissions on 2 May 2023.  In those submissions, he only reiterated the factual basis and procedural history of his non-refoulement claim and that he disagreed with the decisions made by the Board and the Director.

Discussion

15.  Following the approach this court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

16.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

17.  The applicant’s delay of 11 days is not insubstantial, and for the present purpose, we will focus on the merit of his intended appeal.

18.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

19.  In our view, the application has no merit at all and must fail.  At the outset, the applicant failed to specify any ground of appeal and his assertions are all general and bare assertions without pointing out any specific error in the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Accordingly, his assertions are not viable grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].  His appeal must fail on this basis alone.

20.  For the above reasons, the intended appeal is a non-starter and has no prospect of success.  It will be futile to extend time. The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 17 April 2023 is dismissed.