Re Ali Jamshaid

CAMP 6/2021

[2021] HKCA 1224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 6 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 511 OF 2018)

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J U D G M E N T

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The Court:

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 30 June 2020 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 2 February 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 26 May 2016 and 7 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong on 15 October 2013 illegally and he surrendered to the authorities on 6 March 2014.  He lodged a non-refoulement claim on 8 March 2014. 

3.The applicant’s claim was based on threats from members of an opposing political party and the police in Pakistan.  The details of the applicant’s claim have been summarised by the judge at [1] to [7] of the CALL-1 Form.

4.By a Notice of Decision dated 26 May 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2] and the torture risk^[3].

5.By a Notice of Further Decision dated 7 April 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 18 January 2018, the Board dismissed the appeal on 2 February 2018 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.At [60] of the Board’s Decision, the Board found that the applicant’s evidence was inconsistent, contradictory and untrue.  The Board was also satisfied at [66] that state protection would be available for the applicant and at [67] that internal relocation would be viable.

The judge’s decision

8.The applicant filed a Form 86 on 28 March 2018 which contained no ground for seeking relief.

9.In his affirmation in support of the leave application filed on 28 March 2018, the applicant deposed that:

“I am not satisfied with the Decision of Immigration Appeal/Board. And I cannot go back to my home country because my life is still in danger there.”

10.The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to grant leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [14] to [18] of the CALL-1 Form:

“14. 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.

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 51 – 60 of its decision with the benefit of hearing his oral evidence and 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 both the Director and the Board in their respective 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, 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.

18. 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.”

Application for extension of time to appeal and grounds for appeal

12.Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 6 August 2020, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 8 December 2020.

13.By a summons filed on 5 January 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that:

“I am the applicant herein. In the order give to the Court a more complete picture about my case my life is danger in my origin country in Pakistan that’s why I am requested to court and Director of Immigration department. Please save my life as a human been everyone know now very strange Pakistani police and Pakistani establishment they kidnap people and innocent people killing in Pakistan. The order herein of [the judge] dated 30 June 2020…”

14.In his affirmation in support filed on the same day, the applicant exhibited the decision by the judge to refuse extension of time dated 8 December 2020.  He did not give any ground of application.

15.Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 26 February 2021, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

16.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 rule 14A.

17.We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

18.The only ground of appeal advanced by the applicant is that it is unsafe for him to return to Pakistan.  He did not identify any error on the part of the judge and he has therefore failed to advance any viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

19.As for the bare assertion by the applicant that it is unsafe for him to return, this is not itself a valid ground for judicial review or ground of appeal.  In any event, we note that the Board dismissed his claim for protection on the ground that his claim is not credible and in any event state protection and internal relocation were available to him.  Because the applicant failed to substantiate any public law error in the Board’s Decision, there is nothing to challenge the findings by the Board.

20.We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 5 January 2021 is dismissed accordingly.

21.We are also of the view that the application is totally without merit.  Pursuant to Order 59 rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.

The applicant, unrepresented, acting in person