Re Manzoor Yasir

CAMP 95/2023, [2024] HKCA 220

On Appeal From [2022] HKCFI 536

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 95 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 254 OF 2019)

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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 3 March 2023, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge To (“the Deputy Judge”)  dated 23 February 2022, refusing his application for leave to apply for judicial review ([2022] HKCFI 536)  (“the Leave Decision”).  By a subsequent order dated 30 September 2022, the Deputy Judge further refused his application for extension of time to appeal ([2022] HKCFI 2828)  (“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 4 January 2019 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 30 October 2017, by which the Director rejected his claim for non-refoulement protection (“the Director’s Decision”).

3.Having considered the paper, 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 last entered Hong Kong illegally on 29 September 2015 and was arrested on the same day.  On 1 October 2015, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the people who were associated with the political party Pakistan Muslim League (Nawaz)  (“PML(N)”)  and claimed that his uncle and cousins and/or supporters of PML(N)  killed his father. Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] - [12] of the Leave Decision.

5.By the Director’s Decision, 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].  Having assessed all the evidence, the Director considered that his claim failed on all applicable grounds.

6.On 13 November 2017, the applicant then appealed against the Director’s Decision to the Board.  On 11 September 2018, he attended an oral hearing before the Board.  By the Board’s Decision, the Board dismissed his appeal.  Having considered his evidence, the Board found that there were significant inconsistencies in the applicant’s evidence in relation to his father’s alleged shooting and death. The Board also found his account of the two shootings inconsistent and confusing.  The Board further found that the applicant was not a credible witness and that he fabricated his non-refoulement claim.  As such, the Board did not consider that he would face a real risk of proscribed harm from his uncle, his cousins and/or supporters of PML(N).

The Leave Decision

7.On 28 January 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  He did not raise any grounds in support of his application in his Form 86. In his supporting affirmation, he advanced the following grounds of challenge as summarised by the Deputy Judge at [16] of the Leave Decision:

(1)  lack of legal and language assistance;

(2)  the Board did not address the issues raised in the notice of appeal and the decision was made on a templet basis;

(3)  the Board’s failure to give reasons; and

(4)  bias.

8.As the applicant was absent from the oral hearing held on 20 January 2022, the Deputy Judge considered his application on paper.

9.By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [17] - [32] of the Leave Decision.  In essence, the Deputy Judge found that the applicant’s complaint in relation to the lack of legal and language assistance was not substantiated as it was well established that the high standard of fairness did not mean that claimants had an absolute right to free legal representation at all stages of the proceedings.  Besides, the applicant had the benefit of legal representation before the Director and there was no prejudice suffered by him from the alleged lack of assistance before the Board.  The Deputy Judge also dismissed the applicant’s complaint that the Board was making standardised assessment for their decisions and further held that the Board had thoroughly analysed the applicant’s evidence and gave detailed reasons.  The Deputy Judge also found that the applicant’s complaint as to bias was completely misplaced.  Accordingly, his application for leave to apply for judicial review was dismissed.

The EOT Decision

10.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.

11.On 22 July 2022, 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 the EOT Summons and supporting affirmation, he only stated he failed to get the Leave Decision within time.

12.By the EOT Decision, the Deputy Judge found that there was no valid explanation for his delay.  Furthermore, the applicant failed to set out his intended grounds of appeal.  Accordingly, the Deputy Judge held that the applicant had no prospect of success in his intended judicial review and refused his application for extension of time to appeal.

The Present Application

13.By a summons and supporting affirmation both filed on 3 March 2023, the applicant reapplied to this court for extension of time to appeal against the Leave Decision.  In his summons, he only stated that he failed to appeal as he did not get the Court’s correspondence on time.  No intended ground of appeal was given.

14.Pursuant to the directions made by the Registrar of Civil Appeals on 3 March 2023, the applicant lodged his written submissions on 17 March 2023.  In his written submissions, the applicant merely repeated the factual basis and procedural history of his non-refoulement claim.

Discussion

15.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].

16.We consider that the applicant’s delay of over four months as substantial and we agree with the Deputy Judge that the applicant failed to give any 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].

17.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].

18.At the outset, the applicant did not specify any intended ground of appeal or state with specific particulars how the Deputy Judge had erred in the Leave Decision.  Further, general assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Accordingly, none of his assertions are proper grounds of appeal.  The appeal must fail on this basis alone.

19.For the above reasons, the intended appeal is a non-starter and 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 3 March 2023 is dismissed.

The applicant acting in person