Re Mahmood Tariq

CAMP 132/2022

[2022] HKCA 862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 132 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2051/2018)

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J U D G M E N T

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

1.This is an application for extension of time to appeal against the decision of DHCJ P Li (“the Judge”)  dated 2 December 2021 refusing to grant 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 20 September 2018 (“the Board’s Decision”)  dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 11 January 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong illegally on 18 November 2013, and was arrested by the police on the same day.  The applicant thereafter lodged a non-refoulement claim on 20 November 2013.

3.The applicant’s claim was based on a fear of being harmed or killed by his relative by reason of a land dispute. The details of the applicant’s claim have been summarised by the Judge at [2] to [9] of his decision (“the CALL-1 Form”)[1].

4.By a Notice of Decision dated 11 January 2018, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.The applicant appealed to the Board.  After a hearing on 27 April 2018, the Board dismissed the appeal on 20 September 2018.  The Board’s Decision covered all four grounds for non-refoulement protection.  By reason of inconsistencies in the applicant’s evidence, the Board rejected the fundamental basis of the applicant’s alleged claims of harm and was of the view that his overall evidence was considered to be incredible.

The Judge’s decision

6.The applicant filed a Form 86 on 27 September 2018 seeking to judicially review the Board’s Decision without setting out any grounds of review.  In his supporting affirmation, he merely exhibited a copy of the Board’s Decision.  

7.After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [15] of the CALL-1 Form:

“12.  The applicant filed the leave application on 27/9/2018. In his affirmation, he did not point out any specific error in the decision of the TCAB.

13.  It is the duty of the adjudicator to establish the facts and the credibility of an applicant. In general, this court would not interfere. In a leave application, this court would decide whether there is any error of law and procedure. Whether the TCAB decision is rational.

14.  The applicant’s inconsistency was serious. His evidence was confusing and deficient in important details. This court agrees with the adjudicator that he was not credible. The factual basis was not plausible. There was no real risk of harm if he returned to Pakistan. There is no error of law or procedure, the TCAB decision is rational.

Conclusion

15.  This court refuses leave for the intended judicial review.  It is not reasonably arguable.  There is no reasonable prospect of success.”

The present application for extension of time to appeal

8.The applicant’s address as stated in his Form 86 was at Nathan Road, Mongkok (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 2 December 2021.  This letter was not returned undelivered.  

9.Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 2 December 2021.

10.The applicant took out a summons in the Court of First Instance on 17 December 2021 seeking extension of time to appeal, in which his address was also stated to be the Address.  He stated in the summons that the reason for the delay in his lodging of the intended appeal was that he “got the judgment late in [his] mailbox”.   

11.The applicant’s application to appeal out of time was dismissed by the Judge on 22 February 2022[6].

12.By a summons filed on 29 April 2022, the applicant renewed his application for an extension of time to appeal before this court.  The applicant simply reiterated that he “did not get judgment”.

13.The applicant, in breach of the directions of the Registrar of Civil Appeals, failed to lodge written submissions on or before 13 May 2022.  

14.The applicant in fact lodged his submissions late, on 16 May 2022.  Given the short delay, we have in this case nonetheless proceeded to consider his written submissions, which merely repeated the dangers he may face should he return to Pakistan, as well as claiming that he did not receive the Judge’s decision in time.

Discussion

15.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

16.In the circumstances of this case, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.

17.We have nonetheless proceeded to consider the merits of the intended appeal, as the delay was very short.

18.The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

19.The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

20.Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)  & (4)]. 

21.The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal.  The summons filed on 29 April 2022 is accordingly dismissed.

The applicant acting in person