RE SHAH QADEER HUSSAIN

CAMP 139/2021

[2022] HKCA 400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 139 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 686 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 September 2020, DHCJ Bruno Chan (“the Judge”) refused to give the applicant leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). 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. The deadline was therefore 23 September 2020.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 28 October 2020 for extension of time to appeal (which was late by 5 weeks).  That summons was dismissed by the Judge on 20 April 2021. 

3.  On 3 May 2021, the applicant filed his summons in CAMP 139/2021 (“the Summons”) to 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 3 June 2021, the applicant lodged his written submissions on 9 June 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 applicant is a Pakistani national.  He last entered Hong Kong illegally in October 2015 and surrendered to the Immigration Department on 27 October 2015 when he raised a non-refoulement claim alleging that if he returned to Pakistan he would be harmed or killed by the family of a person he accidentally killed in a traffic accident.  The factual background of this case was succinctly summarised by the Judge at [2] – [4] of the JR Decision ([2020] HKCFI 2218).

7.  By a Notice of Decision dated 21 July 2016 and Notice of Further Decision dated 26 July 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions 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 decisions to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 14 March 2018.  By its decision dated 11 April 2018, the Board dismissed the appeal and confirmed the Director’s decisions.  The Board did a detailed analysis of the applicant’s evidence at [28] to [69] and concluded at [70] to [75] that the applicant was not a truthful witness as his evidence was vague, inconsistent and implausible.  The Board came to the view that the applicant had fabricated his claim to create a basis for non-refoulement protection.  It did not accept that the applicant would face a real risk of harm upon his return to Pakistan, and his claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 20 April 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and the Board’s decisions.  In his supporting affirmation, he advanced the following grounds (as  summarised by the Judge at [10] of the JR Decision:

(1)  There was a lack of legal representation in his appeal before the Board.[5]

(2)  There was a lack of legal assistance in explaining or translating the Board’s decision to him so that he could understand the reasons for rejecting his case.[6]

The JR Decision

10.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  After due consideration of the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [11] - [17] of the JR Decision:

“11. For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

12.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

13.  As for his complaint under Ground (2) of not being explained or provided with a translation of the Board’s decision so that he could better understand the reasons for rejecting his case, it cannot per se be a proper ground to challenge the Board’s decision, and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge. 

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

15.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 22 – 75 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law 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 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 unreasonable or 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.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant was late in filing a notice of appeal against the JR Decision.  He filed a summons in the Court of First Instance on 28 October 2020 for extension of time to appeal. That was dismissed by the Judge on 20 April 2021.  Hence, the Summons to this court. 

Discussion

12.  In considering whether to extend time for appealing, the Court has 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).  As for (1), the applicant was late by 5 weeks between the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial. 

13.  As for (2), the reasons for the delay, the applicant explained to the Judge at the hearing that he had simply forgotten about the matter. The court file showed that the JR Decision was sent to his last reported address on 9 September 2020 which is the same address as stated in his application before the Judge, and it was not returned through the post.  In his supporting affirmation for the Summons before this Court, he said that he did not have knowledge and resources, which caused the delay.  As rightly pointed out by the Judge, lapse of memory or ignorance of the law is not an excuse for non-compliance with rules of court.  In the circumstances, we are not satisfied that there is any good reason for the applicant’s substantial delay.

14.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant’s grounds of review were duly considered by the Judge.  In his application for extension of time before the Judge, he did not raise any proper ground of appeal against the JR Decision.  It is plainly right for the Judge to conclude that there is no realistic prospect of success in the intended appeal and to refuse leave. 

15.  In his summons and supporting affirmation for extension of time before this Court, he also failed to provide any ground to reverse the JR Decision.  In his written submissions, in gist, he merely claimed that he would face risk of harm if refouled as his enemies are still looking for him and there will not be reasonable state protection for him upon his return to Pakistan.  He urged the court to let him stay in Hong Kong.

16.  It is clear from the Board’s decision that the applicant’s claim was rejected on the issue of credibility as his evidence was vague and inconsistent and that the Board found that he had manufactured a story to provide a basis for his claim.  It was perfectly open to the Board to reach its findings and conclusions and the court would only intervene if there were valid public law grounds.  We do not see any in this case.  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.

17.  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 3 May 2021.