RE AHMAD ASHFAQ

CAMP 37/2022

[2022] HKCA 497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 37 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2920/2018)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ P Li (“the Judge”) dated 25 March 2021 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 13 December 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 31 October 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally, and was arrested by the police on 7 March 2017 for unlawfully remaining.  The applicant lodged a non-refoulement claim on 7 March 2017.

3.  The applicant’s claim was based on a fear of being harmed or killed by villagers of the Sunni Sect of Islam if he was refouled to Pakistan.  The details of the applicant’s claim have been summarised by the Judge at [4] to [15] of his decision (“the CALL‑1 Form”)[1].

4.  By a Notice of Decision dated 31 October 2017, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 18 September 2018, the Board dismissed the appeal on 13 December 2018.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board rejected the applicant’s evidence by reason of its inconsistencies, and it accordingly also rejected the applicant’s claims regarding his fears.

The Judge’s decision

6.  The applicant filed a Form 86 on 19 December 2018 seeking to judicially review the Board’s Decision without setting out any grounds of review.  In his supporting affirmation, he simply stated that he was dissatisfied with the Board’s Decision and the Director’s Decision, without providing any particulars or bases.   

7.  After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [16] to [24] of the CALL‑1 Form:

“16.  The Director found that there was no real and substantial risk of harm for the following reasons: 

(a)   He had been practising Shia Muslim freely since 1985 in his village. The dispute only arose when he planned to build an Imam Bargah in 2008. In fact, he admitted that the dispute would stop if he did not proceed with the building plan. He was safe when he fled to his in-laws and in Lahore. The threat was localized. It was a far-fetched assertion that all Sunni Muslims would harm him elsewhere in Pakistan.

(b)   The applicant asserted that the police sided with the Sunni Muslims. There was no concrete evidence. There was insufficient evidence that the police would not discharge their duties nor exercise due diligence despite the alleged conduct of the local police officers.

(c)   The COI revealed that there was sectarian and religiously-motivated violence against Shia Muslims, Christians and Hindus who were the minority religious groups in Pakistan. However, other COI reported significant Shia influence in the government and representation in the parliament, the police, the judiciary and the Council of Islamic Ideology. In fact, Sunni leaders were also attacked. The problem was chronic and among the religious extremists.

(d)   Police abuse of power and corruption was common in Pakistan. However, there were improvements in Punjab in training technical skills and human rights protection for the police. The NAB was tasked to tackle corruption. Citizens could complain to higher ranking officers if there was failure of duties. There was the District Public Safety and Police Complaints Commission monitoring police misconduct. There was the Ombudsman office to address grievances of misconduct in administration.

(e)   The threat to the applicant was localized. There was no indication that the Sunni Muslims in his village would escalate the threat to other parts of the country. Pakistan was a large country with 204 million people. It was difficult to locate the applicant. The law in Pakistan permit relocation. It would be viable for the applicant to relocate to Lahore and Islambad.

17.    The Director rejected the applicant’s claim on all grounds.

The Decision of TCAB

18.    The applicant gave evidence during the hearing on 18/9/2018.  The adjudicator rejected his appeal on 13/12/2018. 

19.    The adjudicator found that the applicant was not credible for these reasons: 

(a)   The applicant claimed during the hearing at TCAB that there was propaganda threatening to kill him by Sunni Muslims in 2003. He thus fled to Hong Kong and stayed for 4 years. This propaganda of threat was never mentioned in his NCF. It was also not mentioned during the interview before the Director.

(b)   He returned to Pakistan in 2007 as his friend told him it was safe in the village. However, in his NCF, he said that in 2008, the villagers objected to his building an Imam Bargah. The reason for his return to Pakistan was unconvincing and inconsistent with the situation in 2008.

(c)   The applicant wanted to build a large Imam Bargah accommodating 1000 people while there were already two Shia mosques nearby. In fact, in his absence, all these Shia Muslims were able to commemorate on their own elsewhere.

(d)   The applicant told the adjudicator that between 2003-2007, there was a change of regulations which required a boundary wall of 8-9 feet to accommodate the Shia Muslims in the Imam Bargah. This change of regulations was his justification to build an Imam Bargah in 2008. This change was not mentioned in his NCF and in his interview before the Director. His explanation for not mentioning it was not satisfactory.

(e)   The applicant did not file any protection claim during his stay in Hong Kong in 2003—2007. He did not file any protection in China from 2013—2016. He delayed for about 4 months from November 2016 to March 2017 before filing the claim in this case. It was only after his arrest. Throughout these periods, he was allegedly in fear of his life. His conduct was inconsistent with his fear. His explanation was unconvincing.

(f)    In his NCF, he rejected relocation on the ground of financial problem and lack of network. However, he admitted during the hearing that he was well off in Pakistan with a house worth 2 million rupees.

20.    The adjudicator found the applicant was not a witness of truth. His story was not credible. There was no intention to build an Imam Bargah. There was no shooting. There was no threat from Sunni Muslims.  There was no real risk of him if he returned to Pakistan.

21.    The adjudicator concluded that the applicant had not made out a case for non-refoulement protection.  Given the rejection of his story, all grounds under BOR 2, BOR 3, persecution risk and torture risk failed.

Judicial Review

22.    The applicant filed the leave application on 19/12/2018.  He disagreed with the decisions of the Director and the TCAB.  He had not pointed out any specific error in both decisions.

23.    I have considered the decisions in particular that of the TCAB.  I agree with the adjudicator that the evidence was not credible. I do not find any error of law or procedure in both decisions.  They are reasonable.

Conclusion

24.    This case is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.”

The present application for extension of time to appeal

8.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at his last known address on 25 March 2021.  This letter was not returned undelivered.  

9.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 25 March 2021.

10.  The applicant took out a summons in the Court of First Instance on 12 July 2021 seeking extension of time to appeal.  His stated in the summons and his supporting affirmation that he did not receive the CALL‑1 Form in time.

11.  The applicant’s application to appeal out of time was dismissed by the Judge on 11 January 2022[6].

12.  By a summons filed on 28 January 2022, the applicant renewed his application for an extension of time to appeal before this court.  Although he sought leave to appeal against the Judge’s decision of 11 January 2022 refusing an extension of time to appeal, we shall in accordance with our usual practice, treat the application as a renewed application to us for leave to appeal out of time.  In the summons and his supporting affirmation, the applicant simply exhibited the order of the Judge dated 11 January 2022 without stating any grounds in support, simply stating that he was dissatisfied with the decision and wanted to appeal.

13.  In breach of the directions given by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with this court on or before 11 February 2022.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

15.  The applicant has proffered no reason or explanation for the delay in bringing the intended appeal.  In the circumstances, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.

16.  We have nonetheless proceeded to consider the merits of the intended appeal.

17.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

18.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

19.  Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)]. 

20.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

21.  For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal.  The summons filed on 28 January 2022 is accordingly dismissed.