RE QADIR SHER

CACV 242/2017

[2018] HKCA 160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 242 OF 2017

(ON APPEAL FROM HCAL 341/2017)

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the court):

1.  This is an appeal from the decision of Deputy High Court Judge Woodcock on 20 October 2017 refusing leave to the applicant (wrongly entitled the “plaintiff” in the notice of appeal) to apply for judicial review. The applicant is a national of Pakistan. He entered Hong Kong from the Mainland illegally on 15 June 2009. He was arrested on the same day. He lodged his non‑refoulement claim[1] on 18 June 2009. His claim was based on his fear of being harmed or killed by three customers with whom he had a fight over some political issues when he worked as a waiter at a restaurant.

2.  The Director of Immigration rejected the claim on 30 July 2015.  The director considered that the alleged fear of ill treatment would not likely materialise.  The availability of state protection and the possibility of relocation would also lower the perceived risk of harm.  The decision also covered the BOR 3 risk, the persecution risk, and the torture risk.[2]

3.  By a supplemental decision of 9 June 2017, the director also assessed the applicant’s BOR 2 risk[3] and decided it against him.  (Notwithstanding that the supplemental decision was not the subject of the application for leave to apply for judicial review, the deputy judge dealt with the BOR 2 risk at paragraph 19 of the CALL‑1 form.)

4.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 2 June 2016, the board dismissed the appeal on 29 March 2017.

5.  The intended judicial review was in respect of the board’s decision.  The form 86 filed by the applicant on 28 June 2017 did not contain any grounds for seeking relief.  In the supporting affirmation dated 28 June 2017, 8 grounds were relied on:

(a) the adjudicator comprising the board failed to carry out sufficient research and inquiry into the COI[4];

(b) The adjudicator failed to take into account the relevant information on the COI and had cherry-picked, took into account, and put weight on such COI information that was of little or no relevance;

(c) The adjudicator failed to make a finding that Pakistan has a consistent pattern of gross and flagrant violation of human rights;

(d) The adjudicator failed to make an accurate assessment of state protection in Pakistan;

(e) The adjudicator failed to take into account facts that were in favour of the applicant;

(f) The adjudicator failed to call for psychological and psychiatric reports;

(g) The adjudicator applied the wrong standard of proof;

(h) The assigned duty lawyer failed the applicant at the first instance before the director.

6.  The applicant also complained that the hearing bundle was in English and was only given to him a few days prior to the hearing, leaving him with insufficient time to prepare.

7.  After summarising the facts and background of the case and considering the decision of the board, the deputy judge gave the following reasons in refusing leave at paragraphs 20 to 26 of the CALL-1 form:

“20. I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out. This finding also applies to the hearing before the Director.

21. I found no substance in the grounds of this application. In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated.

22. It is submitted the adjudicator failed to consider relevant and up-to-date COI information, cherry picked information or failed to properly enquire at all. The adjudicator made proper reference to material he relied on and referred to in the hearing bundle. He stated the source and its relevance. I find it more than sufficient, there is no substance to this ground.

23. The applicant relies on a procedural impropriety/unfairness ground in that his assigned duty lawyer failed him in the hearing, at first instance before the Director. In essence, it is said he was not represented properly and not afforded a fair procedure. However, the same assigned duty lawyer represented the applicant during his appeal hearing before the adjudicator. I doubt he would have made himself a ground of appeal before the TCAB; incompetence of counsel/legal representation. I assume there has been a mistake in adding this ground to this affirmation.

24. It is submitted there was procedural unfairness in that the appeal bundle was in English and given to the applicant just prior to the hearing meaning he had insufficient time to prepare. He did not understand what would happen in the hearing and was confused. I find no substance in this ground because the applicant was represented during the hearing before the TCAB and his interests were protected.

25. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

26. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

8.  The applicant did not set out any grounds of appeal in the notice of appeal of 2 November 2017.  In an affirmation dated 2 November 2017, it was asserted that:

“my case was not fully considered on the following observations:

1) My family moved to Swabi in Khyber Pakhtunkhwa province due to threats and feared of life. I explained fully before the Torture Claims Appeal Board.

2) It was also not considered that in fact, the people in Karachi have connection in Attock and can easily travel there and carry out fatal attack on me.

3) If I return to Pakistan, who will be responsible for the consequences such as my life and the safety of my family.

4) My relatives were accused of false offences and were imprisoned.

5) Gun shooting attack outside my home by the members of ANP (a Political Party).” (sic)

9.  By a letter dated 6 November 2017, the applicant agreed that the appeal be heard by a two‑judge court.

10.  We heard the appeal on 13 March 2018. Despite the directions from the Registrar of Civil Appeals dated 6 December 2017 (paragraph 4), the applicant failed to lodge his skeleton argument before the hearing.

11.  We note that the ground relating to the present whereabouts of the applicant’s family had never been relied on as such either in the form 86 or supporting affirmation for leave to apply for judicial review.  As this court has said many times before, an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below.  This is equally apposite in an appeal against the refusal of leave.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53 Rule 4(1).  In any event, we see no merit in this new ground.

12.  Nor had the applicant put forward in the form 86 or affirmation in support the ground relating to the travel distance between Karachi and Attock.  This ground relates to the adjudicator’s comment that it was hard to believe the ANP people would travel from Karachi to Attock to look for the applicant simply because of a fight in the restaurant.  It was an evaluation of the evidence on the risk alleged, about which the adjudicator was entitled to make on the evidence available before him.  We do not see any reasonable basis to challenge it by way of judicial review.

13.  We see no merit in the other grounds put forward in support of this appeal.  The applicant’s safety was assessed in accordance with the law in terms of the torture risk, the BOR 3 risk, and the persecution risk.  The director, the adjudicator, and the deputy judge had all taken into account matters such as the imprisonment of the applicant’s relatives and the identity of the attackers.  We do not see any errors of law involved. Nor is there any reasonable basis to challenge the process in terms of the high standard of procedural unfairness.  Determination of the merits of the case is essentially a matter for the director and the board, not the court.  We agree with the deputy judge that leave to apply for judicial review should be refused.

14.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.