Re Shahzad Khurram

CAMP 582/2021

[2022] HKCA 1283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 582 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2632 OF 2018)

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Before:  Hon Au and G Lam JJA in Court

Date of Judgment: 1 September 2022

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J U D G M E N T

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

1.By a summons filed on 22 December 2021, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 29 April 2021 refusing his application for leave to apply for judicial review ([2021] HKCFI 1139) (“the Leave Decision”). By a subsequent judgment dated 4 November 2021, the Deputy Judge also refused the applicant’s application for extension of time to appeal against the Leave Decision ([2021] HKCFI 3131) (“the EOT Decision”).

2.The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 24 October 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 8 February 2018 rejecting his claim for non‑refoulement protection (“the Director’s Decision”).

3.Having considered the papers, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.The applicant is a national of Pakistan.  He was arrested by the police for illegally remaining in Hong Kong on 29 January 2016 and was referred to the Immigration Department on 1 February 2016.  On 2 February 2016, he raised a non-refoulement claim on the basis that he would be harmed or killed by some members of some Pakistani Muslim League – N (“PML-N”) due to disputes on the general election of Pakistan and that the applicant was from Shia Sect. Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

5.By a Notice of Decision dated 8 February 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].

6.On 20 February 2018, the applicant appealed against the Director’s Decision to the Board.  On 27 June 2018, he attended an oral hearing before the Board with the assistance of a Punjabi interpreter.  On 27 March 2020, the Board dismissed his appeal.  The Board found that the applicant’s evidence regarding why he was allegedly targeted by PML‑N was inconsistent and confusing.  The Board therefore found the applicant’s claims not credible and did not accept that the applicant had experienced any problems or harm form PML-N people.  Having assessed the evidence, the Board considered that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.On 22 November 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision. However, he did not raise any ground of review and only claimed that he could not return to Pakistan because his life would be in danger.

8.By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review. His reasons were set out at [12] ‑ [17] of the Leave Decision:

“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. … 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.’

14. His ground in support of this application does not assist his application.

15. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The EOT Decision

9.Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14‑day period.

10.On 5 October 2021, the applicant filed a summons (“the EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over four months late with his intended appeal.  In his supporting affirmation, he complained that the Leave Decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his home country and that there was a lack of legal assistance.  He also asserted that he could not receive any correspondence from the Court as he was in the custody of the Correctional Services Department.

11.By the EOT Decision, the Deputy Judge considered that there was no error of law or procedural unfairness in the Board’s Decision and the applicant had not raised any valid ground stating the Board’s error or the Court’s error.  As there was no realistic prospect of success in his intended appeal against the Leave Decision, the Deputy Judge refused to extend time and dismissed his application.

The Present Application

12.By a summons and supporting affirmation both filed on 22 December 2021, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons and supporting affirmation, the applicant claimed that his delay was due to his “lack of knowledge and insufficient sources”.

13.Pursuant to the directions made by the Registrar of Civil Appeals on 22 December 2021, the applicant lodged his written submissions on 31 December 2021.  In those submissions, he claimed that he would be in danger if he returned to his home country.  He further alleged that the police and law making authorities used their political influence and he did not have the strength to fight them.  He also claimed that it would be very difficult to get justice in that corrupt environment and that people like him would be living under threat due to strong enemies.

Discussion

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 success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.We consider that the applicant’s delay of over four months as very substantial.  Ignorance of the time limit to lodge an appeal is clearly not a good reason for his delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

16.The general approach in dealing with appeals in non‑refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

17.The applicant’s appeal is clearly without merit.  Nowhere in his summons, supporting affirmation or written submissions did he identify any error in the Leave Decision with specific particulars.  Accordingly, there is no viable ground of appeal and his intended appeal must fail on this alone.

18.Further and in any event, his general and bare assertions of his fear if refouled to his home country do not constitute valid grounds of appeal.  As repeatedly emphasised by the Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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: 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].

19.For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 22 December 2021 is dismissed.

The applicant acting in person