Re Shah Sabir Hussain

CAMP 242/2022, [2023] HKCA 605

On Appeal From [2021] HKCFI 475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 242 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1240 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I.  Factual background

1.On 1 March 2021, Deputy High Court Judge K.W. Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) concerning his non‑refoulement protection claim.

2.On 10 August 2021, the applicant’s application for extension of time to appeal against the said decision was dismissed by DHCJ K.W. Lung as there is no reasonable prospect of success in the intended appeal.

3.On 12 July 2022, the applicant filed the present summons with the Court of Appeal seeking to extend time for appeal against the decision refusing leave to apply for judicial review.

4.This summons is to be treated as a renewed application for leave to appeal out of time against the decision dated 2 August 2018: See Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paragraph 3 to 8.

5.Under Order 59, rule 14A(1) of the Rules of the High Court, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

6.The applicant is a national of Pakistan.  He is 43 years old.  He came to Hong Kong on 18 May 2014 through Sri Lanka and the Mainland.  He was arrested by the police on the same day.  He lodged his non‑refoulement claim with the Immigration Department on 24 May 2014.  Whilst on bail, he had committed offences for which he was sentenced to four months’ imprisonment.  He claims that if refouled, he would be harmed or killed by members of the Muttahida Qaumi Movement Group (the ‘MQM Group’) because he supported the Awami National Party (‘ANP’).  He worked at the Pakistan International Container Terminal as a clearing agent, and the MQM Group members sought protection money from him from time to time.  About the end of 2013, he joined the ANP to burn down the Unit 73 office of the MQM Group in Karachi as revenge for its treatment of the local hawkers.  The MQM Group retaliated by kidnapping him for ransom, he was detained, assaulted, and was only redeemed by his paternal cousin by paying PKR150,000. He reported to the police in Karachi, but they took no action.  Then MQM Group workers did not cooperate with him at worked and he was nearly crashed by a 22‑wheel truck at the work place.  He narrowly escaped, but his motorbike crashed.  A few days later, he received verbal threats from the people of MQM, so he left Pakistan for Hong Kong on 14 May 2014.

II.  The Director’s decisions

7.By a Notice of Decision dated 6 February 2018, the Director rejected the applicant’s claim on, torture risk, BOR 2 risk, BOR 3 risk, and persecution risk.

8.The applicant appealed against the Director’s decisions to the Board.  An oral hearing was conducted on 28 May 2018.  While the Board accepted that the applicant was the victim of crime and extortion carried out by MQM members, it did not accept his claims as to the continuing power of MQM in Karachi and their ability to harm him wherever he may go in Pakistan.  On the basis of the Country of Origin Information, the Board was satisfied that, if the applicant and his family were victims of extortion attempts by MQM members in Karachi, police protection, even if not available to them at the time, would be available to them now.  The Board was not satisfied that the applicant had established there are substantial grounds which support the conclusion that he would face a real risk of ill treatment as claimed if he returned to Pakistan.  Further, it was not accepted that the applicant would be harmed by police with links to MQM or by MQM members if he lived anywhere other than Karachi on his return to Pakistan.  The board thus dismissed the appeal on 13 June 2018.  

III.  The intended judicial review

9.The applicant filed a Form 86 and an affirmation on 3 July 2018 for leave to apply for judicial review against the decisions of the Director and the Board.  His affirmation did not specify any grounds except repeat that his life is still in danger if he should return to his home country.

IV.  The Judge’s decision

10.The Judge was of the view that the applicant’s grounds in support of this application do not assist his application, and there were no errors of law or procedural unfairness in the Board’s Decision.  The findings of the Board were not in any respect open to challenge as Wednesbury unreasonable or irrational.  There was no evidence that shows the applicant had any reasonable chance of success in his intended judicial review.  Given that the case is not reasonably arguable, leave for judicial review was thus refused, and the application was dismissed on 1 March, 2022.

V.  Grounds of intended appeal

11.The applicant did not provide any grounds in his affirmation for this appeal.  His summons only repeated that his life may be in danger if he is to return to Pakistan.

VI.  Analysis

12.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will take into account: 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.

13.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap. 4A, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The order was made on 1 March 2021.  The applicant took out a summons for leave to appeal out of time at the Court below on 23 July 2021.  He was late by 4 months and 9 days.  The applicant has no explanation for the delay.

14.Even if the Court is minded to accept any explanation in view of his delay in the present case, the Court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application.

15.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  

16.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.  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.

17.In the present application, the applicant has not put forward any ground to reverse the Judge’s decision.  The applicant failed to show that he has any reasonable prospect of success in his intended appeal, and he has not adduced any evidence to refute the Board’s findings as to the inconsistencies of his evidence and internally within his claims.  Given that there is no prospect of success in his intended appeal, the summons filed on 12 July 2022 is dismissed.