Re Waheed Muhammad

CAMP 116/2021

[2021] HKCA 1728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 116 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 286 OF 2018)

________________________

________________________

Before:  Hon Chu and Au JJA in Court

Date of Judgment:  22 November 2021

________________________

J U D G M E N T

________________________

Hon Au JA (giving the Judgment of the Court):

Introduction

1.On 1 June 2020, by way of a decision (“the Deputy Judge’s Decision”)  set out in Form CALL-1 ([2020] HKCFI 469), Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  refused to grant leave to the applicant 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 2 February 2018 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 6 July 2017 (“the Director’s Decision”). 

2.The 14-day time period for the applicant to appeal the Deputy Judge’s Decision provided under Order 53, rule 3(4)  of the Rules of the High Court (Cap 4A)  (“the RHC”)  expired on 15 June 2020.  On 15 October 2020, the applicant sought extension of time before the Deputy Judge to appeal the Deputy Judge’s Decision.  He was 4 months out of time.

3.On 1 April 2021, the Deputy Judge refused to grant extension of time to the applicant (“the Extension of Time Decision”).

4.By a summons dated 14 April 2021 (“the CA Summons”), the applicant renewed his application to appeal out of time before this Court. Under Order 59, rule 14A(1)  of the RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  Further, directions were given by the Registrar of Civil Appeals to the applicant on 26 May 2021 concerning the conduct of the application.  Paragraph 8 of those directions also stipulated that upon consideration of the documents lodged, the Court will decide whether to determine the application on the paper. After considering the documents filed, 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 national of Pakistan.  He came to Hong Kong illegally on 20 February 2016 and was arrested on the same date.  On 23 February 2016, he lodged a non-refoulement claim.

6.The applicant’s personal background and his claim were summarized at paragraph 8 of the Director’s Decision and paragraph 9 of the Board’s Decision.

7.Briefly stated, the applicant claimed that he would be harmed or killed by his cousins over a land dispute and because of their different political affiliations.  The applicant claimed that his uncle and cousins belonged to Pakistan Muslim League (Nawaz)  (“PMLN”).  In 2002, the cousins and several PMLN supporters came to the applicant’s land and attacked the applicant.  In 2004, they forcibly possessed the applicant’s land but continued to harass the applicant to vote for PMLN.  They again assaulted the applicant while he was inspecting the land.  Thereafter, in 2013, the applicant was introduced to Pakistan-Tehreek-e-Insaaf (“PTI”).  Upon knowing his joining in PTI, the applicant’s cousins threatened to kill him.  Out of fear, he fled to Hong Kong for protection.

The Director’s Decision and the Board’s Decision

8.By way of the Director’s Decision, the Director assessed and dismissed the applicant’s non-refoulement claims on the BOR3 risk[1], persecution risk[2], torture risk[3], and BOR2 risk[4].

9.The applicant lodged an appeal to the Board against the Director’s Decision.  An oral hearing was held on 27 December 2017, during which the applicant answered questions from the Board.  After hearing the applicant, and considering his evidence in the non-refoulement claim form, the Board found that the applicant gave material inconsistent accounts of his case between what is stated in his non-refoulement claim form and his oral testimony, and also made new claims before the Board which were not raised before the Director.  These inconsistencies casted doubt on the applicant’s credibility (paragraphs 26 - 39 of the Board’s Decision).  It further found that internal relocation was available to the applicant (paragraphs 40 - 47 of the Board’s Decision).  Thus, the Board dismissed his appeal.

The Deputy Judge’s Decision

10.On 22 February 2018, by way of a Form 86, the applicant sought leave to challenge the Board’s Decision.  The applicant did not request for an oral hearing and his grounds of review in the supporting affirmation were comprehensively summarized by the Deputy Judge at [9] of the Deputy Judge’s Decision as follows:

“9. On 22 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  irrationality in failure to consider the concept of state acquiescence;

(2)  procedural impropriety in making insufficient inquiry;

(3)  failure to provide adequate reasons as to decision made;

(4)  procedural impropriety/unfairness in failure to investigate into Country of Origin Information of Pakistan;

(5)  irrationality in failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6)  irrationality in failure to consider a consistent system of human rights violations;

(7)  irrationality in failure to consider if state protection exists in Pakistan;

(8)  irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(9)  procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(10)  procedural impropriety in applying the incorrect standard of proof;

(11)  no reasonable basis for rejecting the credibility of his claim;

(12)  failure to consider the extended form of state acquiescence;

(13)  failure to fully consider the COI reports in assessing risk to the applicant;

(14)  irregularity of the decision-maker being a different person than the interviewing officer; and

(15)  no proper basis for consideration of internal relocation.”

11.After considering the documents, the Deputy Judge refused to grant leave to him to apply for judicial review.  The Deputy Judge set out his reasons at [10] - [15] of the Deputy Judge’s Decision:

“10. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or why would the concept of state acquiescence be relevant to his claim, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did the Board fail to apply the correct test on credibility, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

11. As for his complaint that his appeal before the Board was not heard by the same immigration officer, I fail to see the rationale for requiring it to be heard by the same person, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness. As such there is simply no basis or merits in this complaint of the Applicant either.

12. For the reasons given, and in the absence of any error of law or procedure in the Board’s decision shown by the Applicant, I do not find any of his grounds reasonably arguable for his intended challenge. As has been repeatedly emphasized by the Court of Appeal, 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 being 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.

13. Furthermore, the fact 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.

14. 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.

15.  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

12.On 15 October 2020, the applicant took out a summons to seek extension of time to appeal the Deputy Judge’s Decision.  By way of the Extension of Time Decision, the Deputy Judge dismissed the applicant’s application on the basis that he failed to provide any good reason for the delay and that his intended appeal had no prospect of success.  Thus, the Deputy Judge concluded that it would be futile to extend time.

Renewed application for extension of time to this Court

13.On 14 April 2021, the applicant renewed the application for extension of time to appeal the Deputy Judge’s Decision before this Court.  In the CA Summons and his supporting affirmation, the applicant repeated his explanation of delay in that he was late due to lack of knowledge and insufficient resources. In his written submissions of 31 May 2021, he only stated that he was not satisfied with the Board’s Decision as it ignored many things.  Yet, he did not elaborate on which matters he said the Board had failed to take into account. The applicant also did not identify any specific errors in the Deputy Judge’s Decision.

Legal principles

14.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of the intended appeal; and (d)  the prejudice to the respondent if an extension of time were granted.

15.Even if the court accepts that the applicant’s explanation for delay is reasonable, an applicant still has to show that the appeal has a reasonable prospect of success before extension of time will be considered.  When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; Re Muhammad Shehbaz [2020] HKCA 256.

16.In this respect, 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 principles can be summarised 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 the 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)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new arguments, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  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 decision of 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 RHC.

Discussion

17.A delay of four months is substantial in the context of a statutory time limit of 14 days. We agree with the Deputy Judge that the applicant’s explanations are clearly unsatisfactory as this Court has repeatedly emphasised that ignorance of law is generally not an excuse for delay: Re Gurung Min Bahadur [2018] HKCA 226 at [10].  Further, as mentioned at [13] above, the applicant simply failed to advance any grounds with particularities pointing out any errors in the Deputy Judge’s Decision.  There are thus no viable grounds of appeal, and no merits in the intended appeal.  It would be futile to extend time.  We therefore dismiss the CA Summons.

The applicant acting in person