Re Imran Sarwar

CAMP 390/2022 [2023] HKCA 1126

On Appeal From [2022] HKCFI 1484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 390 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 929 OF 2019)

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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 June 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)  of the Rules of the High Court (Cap.4A)  (“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 18 July 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 9 August 2022.

3.On 28 September 2022, the applicant filed his summons in CAMP 390/2022 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR decision.

4.Pursuant to the directions made by the Registrar of Civil Appeals on 28 September 2022, the applicant should lodge his written submissions in support of the Summons on or before 12 October 2022.  However, he only lodged his written submissions on 14 October 2022.

5.The Registrar had further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.  However, as the delay (even though unexplained)  was minimal, we have decided to consider the written submissions.

6.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

7.The applicant is a national of Pakistan. He entered Hong Kong illegally in late October 2008 and was arrested by police on 19 January 2009.  He had previously lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment alleging that if refouled, he would be harmed or even killed by his neighbour as he was a witness to the murder of his cousin.  His torture claim was rejected by the Director on 4 October 2013 but he did not appeal from that decision.  Instead, on 16 October 2013, he lodged a non-refoulement claim on the same basis.  The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2022] HKCFI 1484).

8.By a Notice of Decision dated 15 June 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] and the persecution risk[3].

9.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 7 January 2019.  By its decision dated 22 March 2019, the Board dismissed the appeal.  For the reasons set out at [118] to [145], the Board did not find the applicant a witness of truth and found that he had fabricated his claim. The applicant’s evidence of the alleged murder case (eg whether or not a second person was abducted with his cousin, and whether he saw and knew the shooter [126] – [127])  was vague, inconsistent and not believable.  For the aforesaid reasons, the Board rejected the applicant’s case in its entirety.  In any event, internal relocation is a viable option as the applicant could move to other safe areas such as Islamabad or Karachi [146] – [150].  Accordingly, his non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

10.On 4 April 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  He did not advance any ground for seeking relief in his Form or in his supporting affirmation save for saying that he was not satisfied with the Board’s decision and his life is still in danger in his home country.

The JR Decision

11.The applicant did not request an oral hearing and the Judge disposed of his application on paper.  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 [13] - [18] of the JR Decision:

“13. 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).

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

15. 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.”

16. The Board has given its reasons for its Decision. The applicant has raised no valid reason to challenge the Board’s Decision.

17. 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.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Application for extension of time to appeal the JR Decision

12.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 18 July 2022 for an extension of time to appeal.  That was dismissed by the Judge on 9 August 2022.  Hence, the Summons to this court.

Discussion

13.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). 

14.As for (1), the applicant was late by almost 1 month between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.

15.As for (2), the reasons for the delay, the applicant explained in his summons and supporting affirmation that he missed the time for appeal as he received the JR Decision late.  The court file showed that the JR Decision was sent to the applicant at his last reported address on the day it was handed down, without being returned as undeliverable mail.  In the absence of any details or evidence to corroborate his bare assertion, we see no good reason for his substantial delay.

16.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. 

17.In his written submissions, he repeated his factual allegations and asserted that the “adjudicator did many wrong” without supplying any particulars.

18.It is clear from the Board’s decision that the applicant’s case was rejected in its entirety on the issue of credibility as his evidence was vague, inconsistent and improbable and thus it was not believed that there is a real risk for the applicant to face any of the proscribed forms of harm upon his return to Pakistan.  These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds.

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 28 September 2022.

The applicant, unrepresented, acting in person