RE GHANI USMAN

CAMP 61/2018

[2018] HKCA 418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 61 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 620 of 2017)

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JUDGMENT

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

1.  By summons filed on 11 May 2018, the applicant seeks leave to appeal out of time against the decision of Campbell-Moffat J (“the Judge”) given on 10 April 2018 refusing him leave to apply for judicial review.  The applicant’s intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 19 September 2014 and 21 April 2017 rejecting his non-refoulement claim, and the decision of the Torture Claims Appeal Board (“the Board”) dated 18 August 2017 dismissing his appeal against the Directors’ decisions.

2.  Under Order 59 rule 2A and rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the papers and the applicant’s written submission, we are of the view that, notwithstanding the applicant’s request to hold an oral hearing, it is appropriate to exercise the power under Order 59 rule 2A(5)(a) to determine the present application on paper without a hearing.

3.  The applicant is a Pakistani national.  He entered Hong Kong illegally on 1 June 2007.  He was arrested by police on 20 December 2007. He made a torture claim on 21 August 2008, which was converted into a non-refoulement protection claim in 2014. 

4.  The applicant’s claim is based on his fear that if he were to return to Pakistan, he would be harmed or killed by his uncle (“Aslam”) because of a land dispute.  According to the applicant, his father had inherited a piece of land from his grandfather, which has been occupied and used by Aslam.  The value of the land has escalated since the construction of a highway nearby in the 1990s.  Since then, a dispute over the land had developed between Aslam and the applicant’s father.  When the applicant’s father died in 2009, the land was inherited by the applicant and his brother.  The land dispute with Aslam has persisted.

5.  The applicant says that even before his father’s death, Aslam had made false reports to the police against him.  The first was theft of some machinery from a factory.  The applicant denied involvement, and was detained for three days during which he was repeatedly hit on the soles of his feet and told to make confessions.  He was released after the factory owner asked the police to let him go, and his father had paid a sum of money to the factory owner.  Thereafter, the applicant would be picked up by the police every four to six months, accused of committing various crimes and beaten up to extract confessions.  Then in October 2005, the applicant was taken into police custody for a robbery case, during which he was repeatedly hit on his buttocks with a lither in order to extract confession from him. When his brother went to the police station to look for him, he was also taken into custody and similarly beaten up.  They were detained for several weeks. After their father paid some money to the police, the applicant’s brother was released.  Later, the applicant was charged and bailed out.  Their father then sent them away to stay with their friends in the city of Kharian, which is approximately one-hour journey by bus from the applicant’s home.

6.  On one occasion when the applicant returned home from Kharian, Aslam and his sons were having an argument with his father over the land.  In the course of the argument, Aslam pulled out a revolver and fired a shot into the air to scare the applicant’s family members.  Sometime in 2007 when the applicant attended a relative’s funeral, Aslam threatened the applicant that he would not leave him alive, and would hunt him down.  The applicant’s family did not report Aslam’s misdeeds to the authorities because Aslam is wealthy, politically influential and able to exercise influence over the police who are corrupt.

7.  Eventually, the applicant was acquitted by the court of the robbery case.  On his father’s advice, the applicant departed Pakistan in May 2007 and eventually came to Hong Kong via Guangzhou.  His brother had left Pakistan for Hong Kong before he did.  The applicant was told by his sister that after their father’s death, Aslam has continued his threat to kill the applicant unless he gets the land.

8.  The Director assessed the applicant’s non-refoulement claim under all applicable grounds.  By his decision of 19 September 2014, the Director rejected the applicant’s claim, having considered torture risk[1], BOR 3 risk[2] and persecution risk[3].  The Director, after analysing the relevant circumstances, assessed the level of risk of harm from Aslam on the applicant’s return to Pakistan to be low.  He considered the perceived risk was further reduced or negated by the availability of state protection and internal relocation alternatives.  The Director did not accept the applicant faced a genuine and substantial risk of being subjected to ill-treatment, or that the ill-treatment he asserted could come within the definition of “persecution”.  The Director also considered the dispute with Aslam was personal in nature, and there was no substantial ground to believe that actions by Aslam or the police were at the instigation or with the consent or acquiescence of public officials.

9.  By letter dated 30 March 2017, the Director invited the applicant to submit additional information to support a BOR 2 claim[4]. When the applicant did not respond, the Director proceeded to assess the applicant’s case under the BOR 2 ground on the basis of the information and materials that were previously submitted by the applicant.  By a further decision dated 21 April 2017, the Director decided against the applicant on the BOR 2 ground.  

10.  The applicant appealed to the Board.  A directions hearing and an oral hearing were scheduled for 19 November 2015 and 17 May 2016.  Upon the applicant’s failure to attend the directions hearing, the Board gave notice to the applicant of its intention to determine the appeal without an oral hearing, advising at the same time that the applicant could, within seven days, make a written explanation of his absence at the directions hearing.  No written explanation having been provided by the applicant, the Board vacated the oral hearing and proceeded to adjudicate the appeal. 

11.  By a decision dated 18 August 2017, the Board dismissed the applicant’s appeal.  The Board took the view (at [38] and [39]) that as the applicant failed to appear and in the absence of oral evidence from him, there was no direct material from which proper findings on his credibility could be made, and there was nothing to contradict the Director’s conclusion that his claim failed on all applicable grounds.  The Board concluded (at [44] to [47]) that the applicant fails to discharge his burden of establishing a real risk or chance or substantial grounds for believing that he will suffer the harm he claims to fear if he were to return to Pakistan.      

12.  The applicant filed his Form 86 on 13 September 2017, which did not set out the grounds for his application.  In his supporting affirmation filed on the same day, he stated that the decisions of the Director and the Board were not correct and failed to consider the ground realities in Pakistan.  The applicant did not request for an oral hearing, and his application was determined on paper.

13.  The Judge refused to give leave to apply for judicial review as she considered the intended judicial review was not reasonably arguable and had no realistic prospect of success.  In [11] to [15] of the CALL-1 Form dated 10 April 2018, the Judge gave her reasons as follows:

“Leave to apply for judicial review

11. Judicial Review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

12. The Applicant did not submit any grounds of review other than to say that the Director and Adjudicator failed to consider the reality on the ground of life in Pakistan. There is no question that was not done by the Director and by the Adjudicator as best he could given the circumstances of the Applicant’s failure to attend.

Conclusion

13. I have considered the papers carefully. I have not found any error of law or procedure in respect of the Director’s Decision nor do I see any evidence of procedural unfairness or a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determinations, which were open to him on the facts and eminently reasonable.

14. The Applicant failed to attend the Directions Hearing before the TCAB and thereafter failed to attend to present his case and answer any concerns the Board may have had. The Adjudicator found the claim to be wholly implausible and had no difficulty rejecting the appeal upon consideration of the papers for the reasons given.

15.  The Applicant’s limited Grounds of Review were not supported by argument and did not direct themselves to the issues of unlawfulness, unreasonableness or unfairness.  There is a duty upon the Applicant to explain, even in the most simple terms, why he says his case should be the subject of judicial review.  This he has failed to do.  In my judgement, the Applicant’s claim for judicial review is not reasonably arguable.  I refuse leave for judicial review.”

14.  The 14-day period for the applicant to appeal against the Judge’s decision ended on 24 April 2018[5]. On 11 May 2018, the applicant took out the present summons seeking leave to appeal out of time.

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

16.  In this case, the applicant was late by 16 days.  He had not offered any explanation for the delay.  In view of the not insubstantial length of the delay and the lack of reasons to justify it, the applicant must satisfy us that there are real prospects in his intended appeal before leave to appeal out of time will be granted.

17.  In his affirmation in support of this application, the applicant set out the following grounds of appeal:

(1)   The Judge failed to consider all applicable grounds of non-refoulement and, in particular, the risks of violation of Articles 2 and 22 of the Hong Kong Bill of Rights Ordinance.

(2)   It was irrational for the Judge to dismiss the application without an oral hearing.

(3)   The applicant did not attend the hearing for his leave application because he did not receive any notice of hearing from the court.

18.  In his written submission, the applicant reiterated that he did not receive notice from the court about the hearing of his application for leave to bring judicial review. He said he was, accordingly, deprived of the opportunity to explain his case and to point out the mistakes of the Director and the Board. 

19.  Contrary to what the applicant seems to think, no oral hearing was scheduled for his application for leave to apply for judicial review.  This is permissible under Order 53 rule 3(3) of the Rules of the High Court, which provides that a judge may determine an application for leave to apply for judicial review without a hearing, unless a hearing is requested in the notice of application.  As noted above, the applicant’s Form 86 did not request an oral hearing.   

20.  As the Judge pointed out, judicial review does not operate as a rehearing of the applicant’s non-refoulement claim.  It is not an occasion for an applicant to explain his case for the claim.  The proper occasion to do so this is at the interview with the Immigration Officer and in the process before the Board.  The court will not usurp the Director’s and the Board’s role as the primary decision maker: Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v. Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; and Re Masoom Parvez [2018] HKCA 163.  The applicant’s complaint that the Judge failed to consider all applicable grounds of non-refoulement is therefore misplaced as the Judge was not obliged to undertake an independent assessment of the applicant’s non-refoulement claim against the applicable grounds.     

21.  Further, in an application for leave to apply for judicial review, an applicant has a duty to state the grounds for his intended judicial review and to demonstrate that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v. Winnie Cheung (2007) 10 HKCFAR 676.  In this case, the applicant merely stated in his affirmation in support of the application for leave to bring judicial review that the Director and the Board failed to have regard to ground realities in Pakistan, without giving any particulars.  The Judge addressed this complaint in [7] of the CALL-1 Form and concluded that “the Director fully considered the up to date situation on the ground in Pakistan, acted reasonably and explained his decision on the merits in a clear and intelligible manner”.  The Judge further pointed out in [9] that the Board had discharged its duty to consider the matters afresh by a consideration of the papers before him.  

22.  For the reasons set out above, the applicant’s intended grounds of appeal against the Judge’s decision are unarguable.  We do not accept the determination of his application for leave on paper has resulted in any unfairness.  We note also that even at this stage, the applicant has not identified what are the mistakes in the Director’s and the Board’s decisions.      

23.  We are in agreement with the Judge’s conclusion that the applicant’s intended judicial review is not reasonably arguable and has no realistic prospect of success. 

24.  As we are of the view that the intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time for appealing.  Accordingly, we refuse the application for leave to appeal out of time, and dismiss the applicant’s summons.

25.  Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of High Court that the applicant may not request our determination to be reconsidered at an oral hearing.