Re Zubair Muharram

CAMP 241/2020

[2021] HKCA 1028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 241 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1452 OF 2018)

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Before:  Hon Yeung VP and Chu JA in Court

Date of Written Submissions:  28 January 2021

Date of Judgment:  23 July 2021

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J U D G M E N T

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

Introduction

1.By a decision dated 18 November 2019 (“the Decision”), Deputy High Court Judge K.W. Lung (“DHCJ Lung”)  refused to grant the applicant an extension of time for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 17 April 2018 and dismissed the leave application.  In the Board’s decision, it upheld the decision of the Director of Immigration (“the Director”)  dated 25 May 2017 rejecting the applicant’s non-refoulement claim.

2.The applicant lodged a summons on 24 December 2019 seeking an extension of time to appeal against the Decision.  The application was heard before Deputy High Court Judge C P Pang (“DHCJ Pang”)  on 30 September 2020 and by his decision of 25 November 2020 (“the Leave Decision”), DHCJ Pang, having considered the length of delay, reason for the delay and the underlying merits of his application, dismissed the applicant’s summons on the basis that it would not be in the interest of justice to grant an extension of time.

3.By a summons dated 16 December 2020, the applicant renewed his application before this Court.  Pursuant to the directions of the Registrar of Civil Appeals given on 19 January 2021, the applicant lodged his written submissions on 28 January 2021. 

4.Under Order 59, rule 14A(1)  of the Rules of the High Court (Cap. 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.The applicant is a Pakistani national.  On 27 October 2015, he entered Hong Kong illegally through China and was arrested by police the next day.  He was then transferred to the Immigration Department for investigation.  On 31 October 2015, he lodged his non-refoulement claim on the basis that if he were to return to Pakistan, he would be harmed or even killed by supporters of the Pakistan Muslim League (N)  (“PML(N)”)  because they considered that he was one of the murderers of Muhammad Raqeeb (“Raqeeb”).  He was also in fear of being arrested by the Pakistani police and jailed for life due to a false accusation of murder against him.  The factual background of this case was succinctly set out by the Judge at [11] of the Form CALL-1.[1]

6.By the Notice of Decision dated 25 May 2017, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[2], the BOR 3 risk[3] and the persecution risk[4].

7.The applicant appealed the Director’s decision to the Board and an oral hearing was fixed for 12 February 2018 but the applicant failed to attend.  The Board proceeded to consider the appeal on paper and by its decision dated 17 April 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons and analysis stated in [60] to [81] of its decision, the Board found that the murder case happened in May 2009 and the applicant left Pakistan safely in 2015 without any revenge in any illegal form and therefore, the applicant failed to substantiate that he had well-founded fear of being harmed or tortured by the PML(N)  people if refouled.  The Board further found that the applicant had received a fair trial by a proper court of justice in Pakistan and he absconded to Hong Kong while on bail pending appeal against his conviction of murder charge and in fear of the sentence of life imprisonment and that he is a fugitive from justice.  For the aforesaid reasons, the Board did not find him qualified for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

The Judge’s decision

8.On 24 July 2018, the applicant filed his Form 86 for leave to apply for judicial review against the Director’s and the Board’s decisions. Pursuant to Order 53, rule 4 of the Rules of the High Court (Cap. 4A), an application for leave to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose.  The applicant delayed the application for 7 days.

9.In his supporting affirmation, he advanced the following grounds (as duly summarized by DHCJ Lung at [18] of the Decision:

(1)  He did not receive the Notice of hearing from the Board.

(2)  He did not have legal representation for his appeal.

(3)  The Adjudicator should not assess his case on paper.

(4)  The Board’s Decision was not read and translated to him.

10.The application was heard on 2 May 2019 and by his decision of 18 November 2019, DHCJ Lung refused to extend time for the application for leave to apply for judicial review and dismissed the leave application.  After summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [19] – [27] for his refusal to grant leave:

“The Director’s Decision

19. The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing.  For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

20. The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

21. This is a late application for leave to institute judicial review proceedings against the Board’s Decision. The Board’s Decision is dated 17 April 2018. The applicant’s application is on 24 July 2018. He is therefore 7 days late.

22. I have to consider whether time should be extended for the applicant to proceed with his application in this hearing. I consider that the merits of his application will determine this issue.

23. The applicant appeared before me. He confirmed that he did not attend the hearing of the Appeal Board. He was unable to give any satisfactory reason for his absence.

24. The Board’s findings above were put to the applicant for his comments. He agreed that he had undergone a trial in Pakistan for murdering Raqeed.

25. He also agreed that it would be unfair for the Hong Kong Government to protect him from going back to Pakistan to go through the legal process.

26. In the circumstances, it is clear that those grounds of appeal are simply irrelevant. The applicant has no ground in support of his application.

27.  The applicant fails to show that he had a reasonable chance of success in his proposed judicial review.”

11.Following H v Director of Immigration [2020] HKCFA 22, the applicant may appeal the Decision as of right and the applicant had 14 days from the order of DHCJ Lung to appeal the Decision to the Court of Appeal and it expired on 2 December 2019.  By a summons filed on 24 December 2019, the applicant sought an extension of time to apply for leave to appeal against the Decision.  He was late by about 3 weeks.

12.The summons was heard before DHCJ Pang on 30 September 2020 and by the Leave Decision, the summons was dismissed on 25 November 2020.  On the issue of delay, the applicant merely mentioned in the summons and the supporting affirmation that he was late due to “lack of knowledge and insufficient sources” and failed to explain the reason why he did not receive the order made by Judge Lung on time when the court file suggested that the court order was properly served upon the address given at that time without any returned mail.  As such, it was held that the applicant failed to provide any good reason for his delay.

13.On the issue of merit, the applicant did not identify any grounds of appeal or errors in the Decision.  DHCJ Pang also carefully considered the Decision and took the view that DHCJ Lung had duly reviewed the Board’s decision with the grounds of challenge advanced by the applicant and had rightly found that the intended application for judicial review had no reasonable prospect of success.  As such, DHCJ Pang refused the application for time extension, and dismissed the summons.

The renew application

14.On 16 December 2020, the applicant filed a summons together with supporting affirmation to renew his application before this court in which he advanced the following:

“I am late for apply due to lack of knowledge and insufficient sources. Please accept my late filling application. So that I can process my case further. I hope I will get your favour.”

15.In his written submissions, he advanced the following:

(1)  His life will become worse if refouled and he was not satisfied with all the decisions made in his case.

(2)  The points in his case was ignored and the decisions were not transparent.  The situation of his country is much different as the decision-makers might think and it is hard for him to live and stand in front of his enemies.

(3)  Torture and deaths are common in police custody in Pakistan and the police would just give support to those who bribe them.

(4)  It is impossible for him to go back to work and even if he were to file a report to the police, the police would just inform those powerful people of the same.

(5)  It was impossible for him to go back to Pakistan at the present stage and he urged the court to understand his problem and let him stay in Hong Kong until his problem is solved.

Applicable Legal Principles

16.Pursuant to Order 53, rule 3(4)  of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless an extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.

17.Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

18.In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1)  of the Rules of the High Court (Cap. 4A). 

Discussion

19.We take the view that the delay of 3 weeks in taking out the summons for time extension to appeal against the Decision cannot be said to be insignificant and the applicant’s explanation that he lacked knowledge and resources was not a good reason for the delay. 

20.Thus, the applicant is required to demonstrate that his intended appeal has real prospect of success, before an extension of time would be granted, see: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020.

21.We therefore turn to the merit of the intended appeal.

22.The applicant did not provide any draft or proposed grounds of appeal in his summons, supporting affirmation or written submissions and the matters set out therein are general and bare assertions without pinpointing any error of law or raising any discernible grounds for this Court to reverse the Decision. 

23.In this case, the applicant’s case was rejected by the Board that he had failed to establish a well-founded fear of being harmed or tortured by PML(N)  people on all applicable grounds and the Board found that the applicant had received fair and proper trial for the charge of murder in Pakistan and that he merely absconded to Hong Kong as a fugitive from justice in fear of life imprisonment.   It is open to the Board to reach its determination which in our view, is fully justified and eminently reasonable.  We found no error of law or procedural unfairness or irregularities in it.

24.We are also satisfied that Judge Lung had reviewed the Board’s decision carefully and we found nothing amiss in the Decision.

25.For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 16 December 2020 is dismissed accordingly.

The applicant, unrepresented, acted in person.