Re Hussain Mushtaq

CAMP 100/2023, [2024] HKCA 270

On Appeal From [2022] HKCFI 2574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 100 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2951 OF 2018)

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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.On 7 March 2023, the applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge To (“the Judge”) dated 27 February 2023 ([2023] HKCFI 522) (“the EOT Decision”) refusing to grant him an extension of time to appeal against an earlier order of the Judge dated 19 August 2022 ([2022] HKCFI 2574) (“the Leave Decision”) refusing leave to apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 13 December 2018, dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 20 January 2017 rejecting the applicant’s non-refoulement claim on the ground of BOR2 risk[1].

3.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to 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 entered Hong Kong in August 2007 illegally and was arrested on 4 February 2008.  On 20 March 2009, he raised a torture claim on the basis that he would be harmed or killed by members of Mutahida Quammi Movement party (“MQM”) upon his return because he refused to take part in their illegal activities. With the commencement of the unified screening mechanism, his torture claim was taken to be a non-refoulement claim.  Details of the applicant’s claim have been summarised by the Judge at [6] ‑ [13] of the Leave Decision.

5.By a Notice of Decision dated 27 October 2014 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non‑refoulement claim on all applicable grounds including the risk of torture[2], BOR3 risk[3], and persecution risk[4].

6.The applicant appealed the Director’s 1^st Decision to the Board.  On 19 August 2016, the Board dismissed the applicant’s appeal, and confirmed the Director’s 1^st Decision (“the Board’s 1^st Decision”).  The Board’s reasons for its decision were summarised by the Judge at [14] ‑ [15] of the Leave Decision:

“14.  In its First Decision, the Board found numerous discrepancies between the accounts given by the Applicant to the Immigration Department and in the evidence before the Board. The Board considered the Applicant’s claim about the illegal activities of MQM were largely consistent with the Country of Origin Information. It accepted that the Applicant had joined MQM, attempted to quit and fled to Attock to avoid PB, but found that he did not give his true reason for leaving Pakistan or for choosing to go to Hong Kong. The Board noted that in the NCF, the Applicant claimed he left Attock because his friends, Imran and Shoaib, were beaten up and forced to reveal his whereabouts. But in the hearing before the Board he said Imran or Shoaib had not revealed his whereabouts and that he left Pakistan because he feared MQM might be able to locate him through the supporters and police in Attock. The Board also noted that he claimed to have no intention of coming to Hong Kong when he left Pakistan, and that he only decided to do so when persuaded by some boys after arriving in Guangzhou. The Board found it improbable that as a man of his abilities and education, he would have failed to plan ahead of what he should do before going to Guangzhou on a business visa.

15. The Board further found that as many years had passed since the Applicant left Karachi the chances of future risk of harm from PB or the MQM was “so remote to be negligible”. It also found that as a man of his age and ability, he could safely relocate to places such as Attock or Rawalpindi and that he would face no real or substantial risk of harm if he so relocates. The Board therefore found in the First Decision that he would not face any Torture, BOR 3 or Persecution risks upon his return to Pakistan.”

7.By a Notice of Further Decision dated 20 January 2017 (“the Director’s 2^nd Decision”), the Director rejected the applicant’s non‑refoulement claim on the ground of BOR2 risk.

8.The applicant appealed the Director’s 2^nd Decision to the Board.  On 13 December 2018, the Board dismissed the applicant’s appeal, and confirmed the Director’s 2^nd Decision (“the Board’s 2^nd Decision”).  The Board’s reasons for its decision were summarised by the Judge at [16] of the Leave Decision:

“16. In the Second Decision, the same Board noted that the Applicant had failed to provide any additional information regarding BOR 2 Risk claim, despite having been invited by the Director to do so earlier. On the basis of its finding of fact in its First Decision, particularly the negligible risk of harm the Applicant would face on his return and the viability of internal relocation, the Board found he had failed to establish any risk of harm under BOR 2 Risk. It therefore dismissed his appeal against the Second Notice.”

9.On 21 December 2018, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s 2^nd Decision.  No ground of review was given in the Form 86.  In his supporting affirmation, he only stated that he disagreed with the Board’s 2^nd Decision and if refouled his life would be in danger in Pakistan.

THE JUDGE’S DECISION

10.As the applicant did not request an oral hearing, the Judge determined his application on paper.  On 19 August 2022, the Judge refused to grant the applicant leave to apply for judicial review.  His reasons were stated at [19] ‑ [20] of the Leave Decision:

“19. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant incredible because of the many discrepancies in his evidence. It found he was not telling the truth about his reasons for leaving Pakistan and for coming to Hong Kong. That was a finding of fact solely within the province of the Board. It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the first three applicable grounds in the First Decision and for the same reason failed to prove his entitlement under BOR 2 Risk ground in the Second Decision. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospect of success.

20. For the above reasons, leave to apply for judicial review was refused.”

11.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.

12.On 4 January 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, he was over three months late with his intended appeal.[5]

13.On 27 February 2023, the Judge refused the applicant’s application, holding that the applicant had not been able to raise any valid ground to challenge the Board’s 2^nd Decision or show any realistic prospect of success in his intended appeal.

THIS APPLICATION

14.By a summons and a supporting affirmation filed on 7 March 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In his summons, the applicant did not give any reason for his delay or any ground of review.  In his supporting affirmation, he complained that there had been a lack of language and legal assistance before the Judge and the Board’s proceedings.  He alleged that the lack of language and legal assistance made it not possible for him to point out the errors in the decisions and that he did not understand the legal procedures.  He further complained that the Judge had dismissed his summons for extension of time to appeal on paper despite his request for an oral hearing.

15.Pursuant to the directions of the Registrar of Civil Appeals dated 7 March 2023, the applicant lodged his written submissions on 21 March 2023.  In those submissions, he again reiterated his complaints concerning the lack of legal and language assistance before the Judge and the Board, which, he alleged, caused procedural unfairness in their respective decisions.

DISCUSSION

16.Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

17.In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

18.The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

19.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, 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.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

20.Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

21.In our view, the applicant’s delay of over three months was very substantial and inordinate.  As correctly noted by the Judge in the EOT Decision, there appeared to be a change of address in relation to the applicant’s applications for leave to apply for judicial review and his application for extension of time to appeal before the Judge.  The applicant had to bear the consequence of his neglect in informing the court of his change of address.

22.Further, there is also no substance in the applicant’s complaint as to the lack of legal representation or language assistance. Insofar as this complaint relates to his appeal to the Board, he did not raise this ground in his application for leave to apply for judicial review, and should not be permitted to raise this new ground for the first time in the Court of Appeal.  See: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Insofar as this complaint relates to his application for leave to apply for judicial review or the present application, there is no legal basis for any contention that he was or is entitled to legal representation at either stage of the proceedings.  See: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas[2018] HKCA 15; Re Tariq Farhan[2018] HKCA 17; and Re Lopchan Subash[2018] HKCA 37.

23.Moreover, all court documents filed and lodged by the applicant are written in English.  In the premises, it is clear that either the applicant is himself conversant with the English language or he has access to language assistance of his own if he finds it necessary.  Accordingly, we see no substance in his complaint concerning the lack of language assistance.  We consider that a high standard of fairness has been achieved in the overall process of the determination of his non-refoulement claim.

24.More importantly, the applicant’s complaints against the decisions of the Board and the Leave Decision are general allegations without particulars.  They do not constitute proper grounds of appeal.

25.For completeness, noting that the present application is, by its nature, a reapplication of extension of time to appeal before this court; and given our observations above that the application plainly lack merit, we therefore see no substance in the applicant’s complaint as to the lack of oral hearing before the Judge in relation to his extension of time to appeal application as he had suffered no material prejudice by not having an oral hearing before the Judge.

26.Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

27.The application for extension of time to appeal is refused, and the applicant’s summons taken out on 7 March 2023 is dismissed.

The applicant acting in person