RE IQBAL MAZHAR alias MAZHAR IQBAL

CAMP 148/2022

[2023] HKCA 293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 148 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1358 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 12 December 2022, the applicant filed a Notice of Motion with a supporting affirmation to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 2 December 2022 (“the Judgment”)  ([2022] HKCA 1762). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 16 July 2021, refusing his application for leave to apply for judicial review ([2021] HKCFI 2029).

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.  In his Notice of Motion, the applicant stated:

“1. The learned Judge were wrong as a matter of law for not having applied the principle of irrational to the decision made by the Director of Immigration on dated 16 July 2021 refusing my application for Judicial review.

2. The learned Judge were wrong as a matter of law for not having applied the principle of irrational to the decision of the Director hereby the was required to give reason justifying the decision.” (sic)

5.  In his supporting affirmation, the applicant stated that he was legally unrepresented and had no means to seek any proper legal advice. He further alleged that a good ground of appeal was not necessarily considered at the stage of applying to the Court of Appeal and that the merits of this ground of appeal constituted sufficient justification for the Court to exercise its discretion in allowing his appeal.  However, no such ground of appeal was specified in his supporting affirmation.

6.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 29 December 2022.  In those submissions, he repeated the procedural history and factual basis of his non-refoulement claim.  He also cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  had acted in a procedurally unfair manner without properly assessing his credibility.  He also referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which was about the late filing of notice of appeal to the Board.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.

7.  In our view, the applicant’s intended appeal has no merit at all.  The intended grounds as raised in his Notice of Motion, supporting affirmation and written submissions are all bare and vague allegations without specific particulars in support.  Furthermore, all of his arguments were directed at the Director and the Board and he failed to identify any error in the Judgment.  The matters raised in his written submissions are essentially a mere regurgitation of those submissions he had previously made before this Court: see [14] of the Judgment.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3].  His arguments had already been fully considered and rejected by this Court at [15] - [22] of the Judgment and the applicant failed to identify with specific particulars any error in the Judgment.  High standards of fairness also do not entail free legal representation at all stages of the proceedings or interpretation service being made available at any time the applicant desires: Barroga Escolastica Tejero[2021] HKCA 279 at [3].  As such, nothing set out in the Notice of Motion can be considered as viable grounds of appeal to the Court of Final Appeal.

8.  In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, he 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.

10.  For these reasons, the applicant’s intended appeal has no merit and does not meet the requirements of section 22(1)(b)  of the HKCFAO.  Accordingly, the Notice of Motion is dismissed.

The applicant acting in person

CAMP 148/2022

[2022] HKCA 1762

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 148 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1358 OF 2018)

_______________

_______________

_______________

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 11 May 2022, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 19 January 2022 refusing the applicant’s application for extension of time to appeal ([2022] HKCFI 115) (“the EOT Decision”) against the Deputy Judge’s earlier order dated 16 July 2021, refusing his application for leave to apply for judicial review ([2021] HKCFI 2029) (“the Leave 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 15 June 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 6 September 2017 rejecting his claim for non‑refoulement protection (“the Director’s Decision”).

3.  Having considered the papers, 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 claimed to have last entered Hong Kong illegally on 10 May 2015.  On 28 May 2015, he surrendered to the Immigration Department.  On 23 September 2015, he lodged a non-refoulement claim on the basis that he would be harmed or killed by a gangster named Mukhatar if he returned to Pakistan.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] and [3] of the Leave Decision.

5.  By a Notice of Decision dated 6 September 2017, 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].

6.  The applicant then appealed against the Director’s Decision to the Board.  On 20 April 2018, he attended an oral hearing before the Board.  On 15 June 2018, the Board dismissed his appeal.  On the evidence, the Board found that there was no reason why Mukhatar would still have any adverse interest in him after all these years as Mukhatar got rid of the applicant and his family and had taken the land successfully.  The Board also found that state protection and internal relocation would be available to the applicant upon his return to Pakistan. Having assessed the evidence, the Board considered that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 11 July 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  The applicant did not specify any ground of review in his Form 86 and in his supporting affirmation, he only claimed that the Board disregarded his dangerous situation.  On 18 June 2021, the applicant attended an oral hearing before the Deputy Judge and a Punjabi interpreter was also present to provide language assistance.

8.  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 [9] ‑ [12] of the Leave Decision:

“9. 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; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and NupurMst v Director of Immigration[2018] HKCA 524.

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

11. 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.

12. 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 EOT Decision

9.  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.

10.  On 9 August 2021, 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 ten days late with his intended appeal.  In his supporting affirmation, he contended that he was unrepresented and had no means to instruct a private lawyer.

11.  The application was heard before the Deputy Judge on 5 January 2022 and a Punjabi interpreter was also present to provide language assistance.  During the oral hearing, the applicant contended that he was late as he had to seek help from his friends to prepare the necessary documents for his intended appeal.

12.  By the EOT Decision, the Deputy Judge noted that although a delay of 10 days was not substantial, in the absence of any error in the Leave Decision being clearly and properly identified by the applicant, the Deputy Judge did not see any prospect of success in his intended appeal.  As such, the Deputy Judge dismissed his application for extension of time to appeal.

The Present Application

13.  By a summons and supporting affirmation filed on 11 May 2022, the applicant applied for leave to appeal against the EOT Decision.  No ground of appeal was specified in his summons.  In his supporting affirmation, he stated that he was unrepresented and did not have access to legal advice.  He further asserted that he understood that there was “a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review” without identifying what the alleged ground was.

14.  Pursuant to the directions made by the Registrar of Civil Appeals on 11 May 2022, the applicant lodged his written submissions on 23 May 2022.  In his written submissions, he cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also cited section 37ZT of the Immigration Ordinance, Cap 115 in relation to the late filing of notice of appeal to the Board but failed to demonstrate how it was relevant to his case.  It is noted that his submissions were all general propositions and the applicant failed to show specifically how they were relevant to his case.

Discussion

15.  Following the approach this Court has adopted 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.

16.  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].

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: ReFarrukh Zaib[2020] HKCA 408 at [28].

18.  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.

19.  Although a delay of ten days in taking out his application is not substantial, in our view, his application has no merit.  Nowhere in his summons, supporting affirmation or written submissions did the applicant identify any error committed by the Deputy Judge. The matters raised by the applicant are all general, bare and vague allegations unsupported by specific particulars or evidence.  A mere assertion that he has a good ground of appeal without specifying what that ground is plainly does not suffice.  Clearly, his assertions do not constitute viable grounds of appeal and his intended appeal must fail on this basis alone.

20.  Further, the matters raised in his supporting affirmation and his written submissions are all new grounds not raised before the Deputy Judge. It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive and not raised before the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra,at [14]; and Re Gurpreet Singh [2021] HKCA 1740 at [15]. Accordingly, we refuse to entertain his new arguments.

21.  In any event, his submissions are wholly without merit. Although he stated that he was unrepresented and did not have access to any legal advice, he did not identify how the lack of legal assistance had prejudiced him or amounts to any error in the Leave Decision.  Moreover, it has been repeatedly emphasised by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah[2018] HKCA 14 at [18]; Re Zahid Abbas[2018] HKCA 15 at [11] and Re Tariq Farhan[2018] HKCA 17 at [11].

22.  For the above reasons, the applicant’s intended appeal 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 11 May 2022 dismissed.