RE FAIZ KHAN

CACV 303/2022

[2023] HKCA 451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 303 OF 2022

(ON APPEAL FROM HCAL NO 658 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.  On 16 February 2023, the applicant filed a Notice of Motion out of time to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 19 December 2022 (“the Judgment”) ([2022] HKCA 1849). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 25 July 2022, refusing his application for leave to apply for judicial review ([2022] HKCFI 2100).

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 Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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 Court of Final Appeal 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 the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 16 January 2023.  Accordingly, the applicant was late for a month in taking out his application for leave to appeal to the Court of Final Appeal.

5.  Although the applicant did not apply for leave to appeal to the Court of Final Appeal 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: see Re Imran Muhammad[2021] HKCA 482 at [9] and the authorities cited therein.  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:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD DISMISSED MY NON REFOULEMENT CLAIM. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW. I WANT TO GO TO C.F.A..” (sic)

7.  In his supporting affirmation filed on 16 February 2023, the applicant stated:

“AFFIRMATION FOR APPLY OF NOTICE OF MOTION FOR GO TO THE COURT OF FINAL APPEAL BUT OUT OF SCHEDULED TIME. PLEASE ACCEPT MY APPLICATION ATTACHED A AND B. PLEASE ACCEPT MY APPLY.”[1] (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 2 March 2023.  In those submissions, he repeated the factual basis and procedural history of his non-refoulement claim.  He asserted that his life would be under threat and he would be beaten or killed should he return to his home country and that the situation in his home country was very bad.  He further asserted he was not satisfied with the Board’s Decision.

9.  At the outset, the applicant had failed to give any reason, let alone good reason for his substantial delay of one month in taking out his application for leave to appeal to the Court of Final Appeal.  More importantly, his intended appeal is wholly without substance.  The allegations made in his Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence.  He did not identify any specific error in the Judgment with sufficient particulars.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6].  Accordingly, the applicant’s intended appeal plainly has no merit.

10.  Further, even taking his case at its highest, his allegations are fact‑specific and do not relate to any question of great general or public importance.

11.  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.

12.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal. Accordingly, the Notice of Motion is dismissed.

CACV 303/2022

[2022] HKCA 1849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 303 OF 2022

(ON APPEAL FROM HCAL NO 658 OF 2019)

_______________

_______________

_______________

J U D G M E N T

_______________

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

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 25 July 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2100).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 21 February 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 February 2018 rejecting the applicant’s non-refoulement claim.

3.  We heard the appeal on 5 December 2022. After the hearing, we reserved our judgment to be handed down in writing. This is what we do now.

Background

4.  The applicant is a national of Pakistan. He claimed to have entered Hong Kong illegally by boat on 6 May 2016. He was arrested by the police on 10 May 2016 and referred to the Immigration Department on 11 May 2016. By a written representation dated 12 May 2016, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his maternal uncle owing to a land dispute. Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 27 February 2018 (“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]. Taking into account all relevant circumstances, the Director considered that his non‑refoulement claim was not substantiated.

6.  The applicant then appealed against the Director’s Decision to the Board. The applicant attended the hearing on 27 November 2018 and an interpreter qualified in the Urdu and English languages was present to provide language assistance. Having assessed and considered the totality of the evidence, the Board was not satisfied that the applicant or any member of the applicant’s family had ever been targeted for harm or actually harmed in connection with a land dispute or for any other reason, by his maternal uncle or any of his networks. The Board did not accept that the appellant, if refouled, would face a risk of harm of any nature in connection with his claimed circumstances in the reasonably foreseeable future. The Board was also not satisfied that the applicant would face a real chance of harm of any kind in Pakistan. Accordingly, the Board considered that the applicant had failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 8 March 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision. In his Form 86, the applicant did not state any ground of review. In his supporting affirmation, he only stated that the Immigration Department had disregarded his dangerous situation. As the applicant did not request for an oral hearing, the Deputy Judge considered and determined his application on paper.

8.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. His reasons were set out at [12] ‑ [18] of the Leave 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 Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he had had a fair hearing before the Board and he had nothing to say.

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. Those grounds in paragraph 11 above are not valid reasons to challenge the Board’s Decision.

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

CONCLUSION

18. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The Appeal

9.  On 8 August 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision. In his Notice of Appeal, he stated:

“THE HIGH COURT DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW. I DO NOT AGREE WITH THE HIGH COURT. THE COURT COULD NOT SHOW ANY RESON FOR DISMISSE. I WILL SHOW SOME REASON TO GRANT MY LEAVE.” (sic)

10.  Pursuant to the directions made by the Registrar of Civil Appeals on 21 September 2022, the applicant lodged his written submissions on 3 November 2022. In those submissions, he repeated the factual basis and procedural history of his non-refoulement claim and stated that his enemies were very powerful and could kill him any time. He further asserted that as he had submitted all original documents and a real story, his risk was genuine and that no one could say his claim was fake. He further claimed that all the decisions in respect of his case were wrong and that he did not get justice from the High Court. He then urged the Court of Appeal to save his life and grant him leave to apply for judicial review.

11.  We heard the appeal on 5 December 2022. An Urdu interpreter was present to provide language assistance. During the hearing, the applicant confirmed he had nothing to add to his written materials.

Discussion

12.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].

13.  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. It is not the role of the Court of Appeal to examine a 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.

14.  At the outset, all of the applicant’s allegations are vague, bare contentions unsupported by any specific particulars or evidence. Although he disagreed with the Leave Decision, nowhere in his Notice of Appeal or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision. Accordingly, his submissions are plainly not proper grounds of appeal.

15.  Further, general assertions of his fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib[2020] HKCA 408 at [28]. More importantly, as repeatedly emphasised by the Court of Appeal, it is well‑established that the assessment of evidence, Country of Origin Information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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: Re Md Shohel Sheak[2018] HKCA 714 at [13] and Re Limbu Birkhaman[2019] HKCA 50 at [11]. Accordingly, we see no basis to interfere with the Leave Decision.

16.  For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.

The applicant appeared in person