Re Butt Muhammad Faisal

CAMP 66/2022, [2023] HKCA 850

On Appeal From [2022] HKCFI 58

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF4 APPEAL

MISCELLANEOUS PROCEEDINGS NO 66 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1999 OF 2018)

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J U D G M E N T

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

1.On 7 January 2022, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim and dismissed his leave application (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 24 January 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 22 February 2022.

3.On 22 February 2022, the applicant filed his summons in CAMP 66/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.In compliance with the directions made by the Registrar of Civil Appeals on 11 March 2022, the applicant lodged his written submissions on 19 April 2022.

5.Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.The applicant is a national of Pakistan. He entered Hong Kong illegally on 8 June 2015 and surrendered to the Immigration Department on 15 June 2015.  On 16 September 2015, he lodged a non-refoulement claim alleging that if refouled, he would be harmed or killed by members of Pakistan Muslim League Nawaz (“PMLN”) as he had refused to join and support PMLN at the general election in May 2013.  The applicant claimed that he was a supporter of the rival political party Pakistan People’s Party (“PPP”).  He claimed that after verbal threats by some PMLN members, they attacked him, and that after PMLN won the election, he was attacked on more occasions.  The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2022] HKCFI 58).

7.By a Notice of Decision dated 27 April 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and attended an oral hearing on 23 July and 14 August 2018.  By its decision dated 27 August 2018, the Board dismissed the appeal.  For reasons set out at [149] to [161], the Board found that on the applicant’s own evidence, he had not even been a member of PPP, and he admitted that he had no strong political convictions, only supporting the PPP because his uncle did.  It was incredible that the PMLN people would have targeted him doggedly and pursued him over an extended period of time.  After due consideration of the applicant’s evidence, the Board was not convinced that the applicant had established the primary facts of his case and did not accept that he and/or his family had been threatened and assaulted by PMLN members.  In any event, internal relocation is a viable option.  For the aforesaid reasons, the applicant's non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.On 20 September 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  The applicant did not advance any grounds for relief save for saying that his life was still in danger in his home country.

The JR Decision

10.The applicant did not request an oral hearing and the Judge disposed of his application on the papers.  After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review with reasons set out in [12] - [17] of the JR Decision:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

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

“13 (1).… …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.”

15. He has submitted no valid ground to assist his application.

16. 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.

17. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

Application for extension of time to appeal the JR Decision

11.As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 24 January 2022 for an extension of time to appeal. That was dismissed by the Judge on 22 February 2022.  Hence, the Summons to this court.

Discussion

12.In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

13.As for (1), the applicant was late by 3 days between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was minimal.

14.As for (2), the reasons for the delay, the applicant explained that he got the JR Decision late in his mail box.  It is noted that the JR Decision was sent to his last known address on the same day it was handed down and it was not returned as undeliverable mail. Nevertheless, as the delay is insignificant, we will focus on examining the merit of the application.

15.The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any valid grounds of appeal to challenge the Board’s decision nor did he pinpoint any error in the JR Decision.  The Judge had rightly found that there was no real prospect of success in the applicant’s intended appeal and refused his application.

16.In the applicant’s summons and supporting affirmation filed with this Court, he did not provide any ground for his intended appeal either.

17.In his written submissions, he reiterated that he would face risk of harm from his enemy if refouled. However, the Director, the Board and the Court of First Instance all rejected his claim.  He wants to go to the Court of Final Appeal (sic) for his case and also for the sake of other asylum seekers facing the same problem.

18.It is clear from the Board’s decision that the applicant’s claim was rejected on all applicable grounds as he failed to establish and convince the Board that the PMLN would have made such tenacious efforts to pursue and assault a mere supporter without any strong political convictions.  The Board did not find that the applicant would face any or any substantial risk of harm upon his return to his home country.  It was perfectly open for the Board to reach its findings and conclusions and the court would only intervene if there were valid public law grounds.  As with the judge, we do not see any in this case. 

19.We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

20.As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 22 February 2022.