RE MUNAWAR HUSSAIN

CACV 277/2021

[2022] HKCA 206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 277 OF 2021

(ON APPEAL FROM HCAL NO 1071 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 17 December 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal (“the CFA”)  against this Court’s (Au JA and Lisa Wong J)  judgment of 20 October 2021 (“the Judgment”)  ([2021] HKCA 1538). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 21 May 2021, by which the Deputy Judge refused his application for leave to apply for judicial review ([2021] HKCFI 1449).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the CFA at the discretion of this Court or the CFA if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision.

4.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the present application expired on 17 November 2021.  The applicant was therefore late for one month with his application for leave to appeal to the CFA.

5.  As the applicant did not apply for leave to appeal to the CFA within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another[2021] HKCA 83 at [4] and the authorities cited therein.

6.  In his Notice of Motion, the applicant stated:

“I APPLIED NON REFOULEMENT CLAIM TO HONG KONG IMMIGRATION. THE DIRECTOR OF IMMIGRATION AND ADJUDICATOR OF TORTURE CLAIMS APPEAL BOARD REJECTED MY CLAIM. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY LEAVE. I WANT TO APPLY TO THE COURT OF FINAL APPEAL.” (sic)

7.  In his supporting affirmation filed on 17 December 2021, the applicant stated:

“AFFIRMATION FOR APPLY FOR NOTICE OF MOTION. I AM LATE SORRY FOR LATE APPLY. PLEASE ACCEPT MY APPEAL” (sic)

8.  The applicant lodged his written submissions on 31 December 2021.  In his written submissions, he stated that he came to Hong Kong for the safety of his life and claimed that his enemy in Pakistan was very powerful and influential and empowered by politics.  He contended that he narrated his problems to his immigration officer and it was a very big shock to him that his non-refoulement claim was rejected by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”).  He claimed that screening his claim was not the Board’s main intention and their main work was to exclude his claim.  He further contended that as his application for leave to apply for judicial review was rejected by the Court of First Instance and the Court of Appeal and he wished he would get a good result in the Court of Final Appeal.  None of his submissions identified any error in the Judgment.

9.  In our view, the applicant’s application is wholly devoid of merit.  Not only did he fail to give any reason for his substantial delay of one month before bringing the present application, none of the matters raised in his Notice of Motion, supporting affirmation or written submissions has identified any specific error in the Judgment.  General and bare assertions of his fear to return to his home country simply do not constitute viable grounds of appeal.  The matters raised in his Notice of Motion, supporting affirmation and written submissions are all general, bare and vague allegations unsupported by specific particulars or evidence. Clearly, they do not constitute proper grounds of appeal.  They are also fact-specific and do not relate to any question of great general or public importance.

10.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

11.  For these reasons, the intended appeal has no merit at all.  We will not extend time for a hopeless appeal to be pursued.  Accordingly, the Notice of Motion filed on 17 December 2021 is dismissed.

The applicant acting in person

CACV 277/2021

[2021] HKCA 1538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 277 OF 2021

(ON APPEAL FROM HCAL NO 1071 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.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 21 May 2021, refusing leave to apply for judicial review (“the Leave Decision”) [2021] HKCFI 1449.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 16 March 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 27 June 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

3.  The applicant is a national of Pakistan. He entered Hong Kong on 3 June 2003 and was granted permission to stay as a visitor up to 17 June 2003. He overstayed and was arrested by the police on 12 November 2009. He raised a torture claim on the basis that he would be harmed or killed by his uncle and sons over a land dispute if he returned to Pakistan. His torture claim was dismissed by the Director on 4 February 2013 and his petition was rejected by the Board in March 2013. He subsequently sought non-refoulement protection on 15 April 2013 and completed a Supplementary Claim Form on 1 June 2017. The factual details of the applicant’s claim were summarised by the Deputy Judge at [2] to [6] of the Leave Decision.

4.  By a Notice of Decision dated 27 June 2017, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds other than torture risk, namely the BOR3 risk^[1], the persecution risk^[2] and the BOR2 risk^[3]. Taking into account all relevant circumstances, the Director found that the level of risk of harm the applicant would face if returned to Pakistan would be low, and that both state protection and internal relocation would be available to him.

5.  On 10 July 2017, the applicant appealed against the Director’s Decision. He attended an oral hearing before the Board on 15 February 2018 and gave evidence. The Board dismissed his appeal on 16 March 2018. The Board found that the applicant was not a credible witness, in particular, noting his inconsistent and implausible evidence and non-persuasive explanations concerning past events in Pakistan. The Board rejected the applicant’s claim as not substantiated on all applicable grounds and dismissed his appeal.

The Leave Decision

6.  On 11 June 2018, the applicant filed a Form 86 and a supporting affirmation seeking leave to apply for judicial review against the Board’s Decision. No ground in support of the intended challenge was given. In his supporting affirmation, he merely stated that the Board’s Decision disregarded his dangerous situation without giving any particulars or elaboration. The applicant also failed to give any proper ground for his intended challenge at the hearing before the Deputy Judge on 30 March 2021. By the Leave Decision, the Deputy Judge held that:

“12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Nupur Mst v Director of Immigration[2018] HKCA 524.

13. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 31 – 45 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The Appeal

7.  On 25 May 2021, the applicant filed his Notice of Appeal against the Leave Decision. In the Notice of Appeal, he contended that the Deputy Judge erred in observing that there was no procedural error when the Board committed many procedural errors. No specifications or elaboration as to the alleged procedural errors was given by the applicant.

8.  In his written submissions lodged on 13 September 2021, the applicant reiterated that his life was under threat and that his enemies were very powerful and influential. He did not raise any grounds of appeal with any particulars to show how the Deputy Judge erred in his decision.

9.  The appeal hearing took place on 12 October 2021, during which the applicant confirmed he had nothing further to add to his written materials.

Discussion

10.  The relevant legal principles governing the appeal in non-refoulement cases are set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].

11.  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, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

12.  In light of the above, it is thus incumbent on the applicant to point out the errors in the Leave Decision with sufficient particulars and specifics.

13.  The applicant had not in his Notice of Appeal or written submissions identified any errors committed by the Deputy Judge with sufficient particulars and specifics. As no viable ground of appeal to challenge the Leave Decision had been raised by the applicant, this appeal is bound to fail.

14.  In any event, having considered the materials before us, we have reviewed both the Board’s Decision and the Leave Decision and the reasons they gave for their decisions. We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions. There is no basis to disturb the Leave Decision.

15.  For the reasons given above, the applicant’s appeal has no merits.  Accordingly, we dismiss the appeal.

The applicant acting in person