RE SALMAN SHAH

CAMP 272/2022, [2023] HKCA 802

On appeal from [2021] HKCFI 3341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 272 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1195 OF 2018)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) dated 10 November 2021[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission to support his application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the papers filed in the application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) which rejected his non-refoulement claim.

5.  The applicant is a national of Pakistan aged 52. He last arrived in Hong Kong on 5 October 2001 and was given permission to remain as a visitor for 14 days. He overstayed and was arrested by the police on 25 October 2007. In November 2007, he made a torture claim[2], which was rejected on 17 July 2012. His petition against the decision was dismissed on 8 August 2012. In August 2016 and January 2017, he was convicted of several immigration and criminal offences and sentenced to 6 months’ and 22 months’ imprisonment respectively. By way of written representations dated 11 September 2017 and 1 November 2017, he raised a non-refoulement claim based on fear of being harmed or killed by three Sunni Muslims with whom he had a religious conflict because he is a Shia. The details of the applicant’s claim were set out in the decision of the Director at [8]. We will not repeat them.

6.  By his decision dated 24 January 2018, the Director rejected the applicant’s claim having regard to the BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds. There was no assessment under the torture risk ground in view of the rejection of his previous torture claim.

7.  The applicant appealed the Director’s decision to the Board. The Board heard the appeal at an oral hearing held on 4 May 2018, during which the applicant elected to give evidence and answered questions put by the Board. By its decision dated 21 June 2018, the Board dismissed the appeal. For the reasons given in [30] to [39] of the decision, the Board considered the applicant evasive and there were numerous inconsistencies and discrepancies in his account. The Board found the applicant’s evidence incredible, rejected his claim that there had been threats, attack and torture to him and his family, and did not accept he would face a genuine and substantial risk of being subjected to ill-treatment or his fear was well founded. The Board further held that, even accepting his case, his dispute with the three Sunni Muslims was private in nature, the past attacks did not meet a minimum level of severity and the level of risk of harm upon return was low. The Board concluded that the applicant’s claim failed on all applicable grounds.

8.  On 25 June 2018, the applicant filed a Form 86 together with an affirmation to apply for leave for judicial review. He did not put forward any ground for seeking relief.

9.  The Judge dealt with the application on paper. By a Form CALL-1 dated 10 November 2021, he refused to give the applicant leave to apply for judicial review and gave his reasons in [12] to [17] as follows:

“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 Decision 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. He has submitted no valid ground to assist his application. The Board has reject his evidence on the essential facts in support of his claim. He therefore has no factual basis in support of his claim.

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. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. The 14-day period ended on 24 November 2021.

11.  By a summons and an affirmation filed on 9 June 2022, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper, and by his decision handed down on 14 July 2022[6] refused the application.

12.  On 25 July 2022, the applicant filed the present summons together with an affirmation to make a renewed application to extend the time to appeal the Judge’s dismissal of his leave application.

13.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

14.  The applicant was late for over six months. This is a very serious delay. In the summons and affirmation filed in the court below, he explained that he did not receive the documents from the court and it was until June 2022 that he learnt from the immigration officer the outcome of his case. He also stated that he had poor command of English and Chinese, did not understand the judicial system of Hong Kong and needed to ask for help, which he eventually received from a NGO. We note from the court record that the Form CALL-1 and the court order were posted to the address provided by the applicant in his Form 86, which was the same address stated in all his subsequent summonses and affirmations. They had not been returned by the Post Office. In the circumstances, we do not consider the serious delay to have been satisfactorily explained. The applicant must therefore show that his intended appeal enjoys real prospect of success.

15.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  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. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  The applicant did not provide any grounds for his application or the intended appeal in either the summons or the supporting affirmation. He merely stated that the Court disregarded the dangerous situation in his home country.

18.  In his written submissions, the applicant stated the following as his grounds of appeal:

(1) His case originated from a religious problem. The religious tension has not been resolved. His family members had been killed. He cannot go back to his country.

(2) Pakistan is fraught with human rights problems. The police were corrupt and ineffective, as reflected in the Amnesty International’s report.

(3) The country of origin information (COI) mentioned by the Board was based on the state report without understanding the cultural context of Pakistan.

(4) As a Muslim country that is heavily communal, it is very easy to detect a person.

(5) The Judge found no error of law or procedural unfairness in the Board’s decision. However, lack of knowledge and understanding in assessing a case is in itself an indication of procedural error.

19.  For the reasons set out below, we are of the view that the grounds of appeal put forward in the written submission are unarguable:

(1) Evaluation of evidence, finding of credibility and assessment of risks are matters for the Director and the Board, who are the primary decision makers. The Court will only interfere with their decisions if it can be shown that there were errors of law, irrationality or procedural irregularities. In the present case, the Board rejected the applicant’s evidence as being incredible, and had given full reasons for its conclusion. In his application for leave to judicially review the Board’s decision, the applicant has provided no grounds for seeking relief. As such, his intended judicial review is bound to fail, and the Judge did not err in refusing to give leave to apply for judicial review.

(2) In this renewed application, the applicant asserted for the first time that the Board did not understand the cultural context of Pakistan and that the lack of understanding and knowledge amounted to procedural unfairness. However, this is a new ground that was not articulated before the Judge. It is not permissible to advance new grounds on appeal, especially when the new grounds are fact sensitive. In any event, the applicant has not provided any supporting particulars, such as what are the matters that the Board failed to understand or did not have knowledge.

(3) In the circumstances and in light of the Board’s rejection of the factual basis of his claim, the applicant’s assertion that he cannot go back to his country is unarguable.

20.  We have separately considered the Board’s decision. We do not discern any viable ground to disturb the Board’s decision. We agree with the Judge that the applicant’s intended judicial review has no prospect of success and that leave to apply for judicial review should be refused.

21.  As the applicant’s intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 25 July 2022.