Ghaffar Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 219/2021

[2022] HKCA 3

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 219 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1423 OF 2018)

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Before: Hon Au and Chow JJA in Court

Date of Written Submissions: 28 June 2021

Date of Judgment: 10 January 2022

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JUDGMENT

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

INTRODUCTION

1.By summons dated 16 June 2021, the Applicant applied to this Court for leave to appeal against the order of Deputy High Court Judge K W Lung (“Judge”) dated 7 June 2021. By this order, the Judge refused to grant to the Applicant an extension of time (“EOT Decision”) to appeal against his earlier order dated 8 April 2021 refusing to grant leave to apply for judicial review (“Leave Decision”). The intended judicial review was directed at the decision dated 3 July 2018 of the Torture Claims AppealBoard/Non-refoulement Claims Petition Office (“Board”), dismissing his appeal against the decision dated 25 January 2018 of the Director of Immigration (“Director”) rejecting his claim for non-refoulement protection.

2.Having considered the papers, we are of the view that it is appropriate to determine the summons dated 16 June 2021 without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“RHC”).

BACKGROUND

3.The Applicant is a Pakistani national. He entered Hong Kong illegally on 22 July 2015 and was arrested by the police on the same day. He was referred to the Immigration Department, after which he lodged a claim for non-refoulement protection.

4.The Applicant’s claim was that, if he were to return to Pakistan, he would be harmed or killed by the brothers of his former wife, because he had refused to transfer property to them upon his divorce with his former wife in 2013. His former brothers-in-law had threatened him and made false accusation against him leading to his detention by the police. The details of his claim were summarised by the Judge in the Leave Decision at [5] ([2021] HKCFI 883).

5.By a Notice of Decision dated 25 January 2018, the Director rejected the Applicant’s claim. His decisions covered torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. The Director found that the Applicant’s claim was not substantiated, as there was no ground for believing that the Applicant would be subjected to any real risk of being harmed or killed if he should return to Pakistan. He also found that state protection was available and internal relocation was viable.

6.The Applicant appealed against the Director’s decision to the Board. He attended a hearing on 24 May 2018. The Board dismissed his appeal on 3 July 2018. While accepting that the Applicant had been subjected to threats, false accusations and detention by police, the Board found that the evidence did not show that he would be subjected to any real risk of harm or being killed because he was not harmed by his former brothers-in-law after the divorce for over two years. The Board also found that internal relocation was an option open to him if he returned to Pakistan.

THE LEAVE DECISION

7.On 19 July 2018, the Applicant filed a Form 86 to apply for leave for judicial review of the Board’s decision. In his affirmations in support of the application, he stated that the Board did not consider his dangerous situation. The Applicant did not request for an oral hearing, and the Deputy Judge dealt with the application on paper.

8.The Judge referred to the principles that evaluation of the risk of harm is primarily a matter for the Board, and that the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the Board’s decision. He held that the ground advanced by the Applicant in his affirmations did not assist his application. He did not find any error of law or procedural unfairness in the Board’s decision. He further held that the Board’s findings were not in any respect open to challenge as unreasonable or irrational. Leave to apply for judicial review was refused ([2021] HKCFI 883).

THE EOT DECISION

9.On 3 May 2021, the Applicant applied for an extension of time to appeal against the Leave Decision, as he was out of time by 11 days. The Applicant explained in his affirmation that he did not receive the Leave Decision on time. The Judge determined the application without an oral hearing, and by the EOT Decision he refused to extend time. The Judge referred to the principle that the court will not grant time extension for a hopeless appeal to be pursued, and held that ([2021] HKCFI 1464):

“7. The Court had, in [the Leave Decision], set out the reasons why it refused to grant leave to the applicant to apply for judicial review of the Board’s Decision.

8. The Board, having considered his evidence, found that there was no evidence to show that he would be subjected to any real risk of harm or being killed if he returned to Pakistan. Also, the Board found that internal relocation was an option open to him if he returned to Pakistan.

9. The Court had considered the ground for his application for leave to apply for judicial review and dealt with it in its decision.

10. The Court had considered the Board’s Decision and found that it was without fault.

11. He has no valid reason in support of his application.

12. In the circumstances, I find that the applicant is unable to show that he has any reasonable prospect of success in his intended appeal against the Court’s decision. I refuse to extend time for his appeal. Accordingly, I dismiss his application.”

THE PRESENT APPLICATION

10.By summons dated 16 June 2021, the Applicant sought leave from this Court to appeal against the EOT Decision, repeating that he did not receive the Leave Decision on time. In his supporting affirmation also of 16 June 2021, the Applicant further stated that:

“… my life would be at danger upon refoulement, I would not safe into my country of origin …”

11.In his written submissions dated 28 June 2021, apart from repeating his explanation for delay, the Applicant stated that:

“4. … the [Board and the Director] failed to take into account and/or give proper weight to relevant considerations and materials which he should have, and hence his decision is illegal…”

12.However, the Applicant did not specify the matters which he submitted the Board and the Director had failed to properly take into consideration.

DISCUSSION

13.As the Court of Appeal held in Farrukh Zaib [2020] HKCA 408 at [21], although it is technically possible to appeal against a lower court’s refusal of an application for extension of time to appeal, it is more appropriate to renew the application before this Court. The Applicant’s summons of 16 June 2021 is therefore treated as a renewed application to this Court for extension of time to appeal against the Leave Decision.

14.It was further held in Farrukh Zaib [2020] HKCA 408 at [22] that, 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.

15.In relation to the prospect of the intended appeal, the Court of Appeal’s approach is to focus on the decision of a judge and would only consider reversing his decision if an applicant 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 (Farrukh Zaib [2020] HKCA 408 at [24]). An appeal 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. General and bare assertions without any specific particulars are not proper grounds of appeal (Farrukh Zaib [2020] HKCA 408 at [28]; Re Mizan Sikder [2019] HKCA 20 at [17]).

16.In his affirmation of 16 June 2021, the Applicant repeated his claim that his life would be in danger if he were to return to Pakistan. However, the Board had already considered and rejected his claim. The Judge did not see any error of law or procedural unfairness in the Board’s decision. He held that its findings were not open to challenge as unreasonable or irrational. No errors on the part of the Judge have been identified by the Applicant.

17.Turning to the Applicant’s written submission of 28 June 2021, despite his general assertions that the Board and the Director had failed to take into account or give proper weight to relevant considerations and materials, he did not identify what those considerations or materials were. His general assertions are not valid grounds of appeal.

18.The Applicant has failed to identify any proper grounds of appeal. There is no merit and no prospect of success in his intended appeal against the Leave Decision. Extension of time to appeal against the Leave Decision is refused, and the Applicant’s summons dated 16 June 2021 is dismissed.

The Applicant, acting in person