Re Hussain Mumtaz

CAMP 10/2021

[2021] HKCA 1226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 10 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1606 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 Campbell-Moffat J given on 23 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 30 July 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong on 17 August 2015 illegally and he surrendered to the authorities on 20 August 2015.  He lodged a non-refoulement claim on 30 May 2016. 

3.The applicant’s claim was based on threats from the family of a person known as “Naqvi”.  According to the applicant, he and others were involved in a fight with Naqvi and Naqvi later died from his injuries.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 Form.

4.By a Notice of Decision dated 9 August 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 9 May 2018, the Board dismissed the appeal on 30 July 2018 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [79] of the Board’s Decision, the Board found that the applicant was not a credible witness.  The Board was also satisfied at [104] that state protection would be available for the applicant and at [107] that internal relocation would be viable.

The judge’s decision

7.The applicant filed a Form 86 on 10 August 2018 which contained no ground for seeking relief.

8.In the affirmation filed on the same day, the applicant deposed that he was not satisfied with the decision by the Board and explained why it is unsafe for him to return.  He also claimed that he was not a very educated person and did not have good memory.  He submitted that the Director and the Board failed to conduct inquiries from reliable sources or study the real situation of the danger to him upon his return to Pakistan.

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

10.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 [9] to [12] of the CALL-1 Form:

“9. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. This is an application to apply for leave to judicially review the decision of the Adjudicator. The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10. There were no formal grounds of review. The applicant actually seeks a re-hearing of his appeal but has also complained that the Adjudicator failed to conduct enquiries from reliable sources, had not taken into consideration the realities on the ground and provided no reasonable grounds for refusal. He has not complained of any specific procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the applicant did not submit any formal grounds of review, I have considered the papers and his limited general grounds carefully. The Adjudicator clearly considered the COI and the relevant local issues. His reasons for decision were detailed and comprehensive. There was no merit in these grounds. I have not found any error of law or procedure on the part of the Adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. The applicant was given every opportunity to submit the video evidence he says he relies upon as the trigger for his claim. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

12. In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

Application for extension of time to appeal and grounds for appeal

11.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 4 September 2020, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 13 November 2020.

12.By a summons filed on 8 January 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he stated that:

“[the judge] refused my application for leave. I do not agree with his decision, I want to challenge his decision. He totally follow the adjudicator and adjudicator did not find my problem, but my problem is true.”

13.In his affirmation of the same day filed in support of the application, the applicant deposed that he wanted to challenge the decision by the judge without giving any ground of application.

14.In his skeleton submissions dated 12 March 2021, the applicant explained why it is unsafe for him to return.  He then submitted that:

“I did not receive any decision from the High Court. One immigration officer who take my signature told me to come to High Court and appeal as my J.R. is refused. So I request the honourable judge to accept my application to extend time.”

Discussion

15.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.

16.The applicant claimed that he did not receive the letter enclosing the CALL-1 Form but he did not offer any detail for this explanation.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.

17.We nonetheless go on to consider the merits of the intended appeal.

18.The only ground of appeal advanced by the applicant is his bare assertion that the judge “totally followed” the Board’s Decision implying that the judge did not apply any independent mind to his case.  The applicant did not give any particulars of this claim and therefore the meaning of this ground is unclear. We note that the judge has carefully considered each of the ground of judicial review advanced by the applicant and found that none of the grounds had any merit.  In the circumstances, the bare assertion by the applicant that the judge “totally followed” the Board’s Decision is factually untrue and the ground is without merit.

19.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 8 January 2021 is dismissed accordingly.

20.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