RE AHMED MUSHTAQ

CAMP 43/2020

[2021] HKCA 418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 100 OF 2017)

____________________

____________________

___________________

J U D G M E N T

___________________

Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By the decision of 16 October 2018 (“the Decision”)[1], Yau J (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 20 March 2017.  The Board upheld the decision of the Director of Immigration (“the Director”) dated 27 November 2014 rejecting the applicant’s non-refoulement claim.

2.  On 29 November 2019, the applicant took out a summons for an extension of time to appeal against the Decision and by the decision made on 14 May 2020, the Judge refused to grant leave for the applicant to appeal against the Decision (“the Leave Decision”)[2].

3.  By a summons dated 1 June 2020, the applicant renewed his application before this Court for an extension of time to appeal against the Decision. 

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 16 June 2020, the applicant was directed to lodge his written submissions in support of his summons on or before 2 July 2020.  The applicant lodged his written submissions as directed. 

5.  Under Order 59 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 summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Pakistan.  On 18 September 2007, he last arrived in Hong Kong by using a Pakistani passport with a student visa for taking up study at the Chinese University of Hong Kong.  The applicant was granted permission to remain as a student until 18 September 2008.  His study was terminated on 1 January 2008 but he did not depart.  On 17 September 2008, he surrendered to the Immigration Department and on 1 December 2008, he submitted his claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Upon the commencement of the unified screening mechanism (“USM”) on 3 March 2014, his claim was taken to be a non-refoulement claim and was assessed under the USM.  The applicant’s claim was based on his fear that if he were to return to his home country, he would be harmed or even killed by Zafar because the applicant had previously filed lawsuits against Zafar and had sent report letter to Zafar’s employer causing Zafar to lose his job.  The factual background was succinctly summarized by the Judge at [2] – [16] of the Decision.

7.  By Notice of Decision dated 27 November 2014, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The Director’s decisions covered the BOR 3 risk[3], the torture risk[4] and the persecution risk[5].

8.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  After hearing the appeal on 10 September 2015, by a decision made on 20 March 2017, the Board dismissed his appeal. The Board found that the applicant’s evidence was wholly unreliable, contradictory, illogical and incredible.  Further, the alleged attack by Zafar on 25 August 2006 in which his arms and wrists were slashed with a knife was private in nature and out of personal grudge without any state instigation or consent or acquiescence of a public official.  The alleged verbal threats he received in Hong Kong happened eight years before the Board’s hearing.  As such, the Board found that it was not likely that the applicant would face a genuine and substantial risk of harm or ill-treatment upon his return to Pakistan.  Further, reasonable state protection is available and internal relocation is a viable option.  For the aforesaid reasons, the Board rejected the applicant’s case on all applicable grounds. 

9.  On 27 March 2017, the applicant filed a Form 86 together with his supporting affirmation for leave to apply for judicial review of the Board’s decision.  In his supporting affirmation, he set out the background of his case and some articles / provisions under International Covenant on Civil and Political Rights, Hong Kong Bill of Rights Ordinance, Cap. 383, Basic Law and United Nations Convention Against Torture.  He also advanced 8 grounds for his intended challenge:

(1)  The Adjudicator failed to carry out sufficient research and inquiry into the Country of origin information (“COI”) conditions of Pakistan and his case was dismissed upon unfair procedure.

(2)  The Adjudicator failed to take into account and put proper weight on the relevant COI, cherry-picked COI and relied on outdated COI.  Therefore, the decision was Wednesbury unreasonable.

(3)  The Adjudicator failed to evaluate and make a finding of fact as to whether a consistent pattern of gross, flagrant or mass violations of human rights exist in Pakistan.  Therefore, the decision was unreasonable.

(4)  The Adjudicator failed to analyse and assess whether state protection was available in Pakistan and misdirected himself on the meaning of extended state protection.

(5)  The Adjudicator put weight on irrelevant, incorrect and inaccurate consideration and failed to put weight on facts and draw inferences that were favourable to the applicant’s case.

(6)  The Adjudicator failed to call for psychological and psychiatric report of the applicant.

(7)  The Adjudicator applied the incorrect standard of proof.

(8)  Lack of legal assistance and representation.

The Judge’s decisions

10.  The application was heard on 13 July 2018 and by the Decision made on 16 October 2018, the Judge refused leave for the applicant to apply for judicial review after due consideration of the applicant’s case, Director’s and Board’s decisions.  The reasons were set out at [19] to [23] of the Decision:

“19. It is the contention of the Applicant that although he is not targeted by the Pakistani government, he is indirectly so targeted because Zafar is a government employee and as Zafar is a party worker of the PMLN the threats Zafar made against him are also politically motivated. The arguments of the Applicant obviously do not make sense and are illogical. The Applicant himself pointed out in his non-refoulement claim that he had heard Zafar had been dismissed by the telecommunication department. Furthermore, no matter whether Zafar had been dismissed from his post or not, there is no evidence at all Zafar made the threats against the Applicant in the capacity of a government employee or party worker of PMLN rather than because of personal grudge.

20. The Applicant points out in his affirmation that one and half years have elapsed since the TCAB hearing and the circumstances in Pakistan could have been changed. This is irrelevant to the present application because even if the circumstances in Pakistan had changed for the worse it still does not change the nature of the threats made by Zafar against the Applicant that they have nothing to do with the Pakistani State or politics. More importantly, all complaints made by the Applicant to the police in Pakistan regarding what Zafar had done to him were properly dealt with by the police and Zafar was even taken to court.

21. The Applicant complains that he was given a short notice of the TCAB hearing and the majority of the documents in the bundle provided to him were in English. The Applicant did not have the financial means to hire an interpreter to explain the documents to him. He therefore did not have sufficient time and understanding of the documents to prepare for the appeal. The notice of the Director rejecting the non-refoulement claim of the Applicant is dated 27 November 2014. The hearing of the TCAB did not take place until 10 September 2015. There should be plenty of time for the Applicant to prepare for his appeal. As regards the language problem it should not be too difficult for the Applicant to seek help to have the documents explained to him. This is testified to by the Applicant being able to make a proper affirmation in English for the present application.

22. More importantly, the TCAB have given full assistance to the Applicant and the non-refoulement claim of the Applicant has been fully and fairly considered by the Director and the TCAB.

Conclusion

23.  I have considered the evidence of the case and the decisions of the Director and the TCAB. They have looked into all the available grounds of non-refoulement claims of the Applicant and have carried out thorough research and enquiries into the conditions of Pakistan.  All the issues raised by the Applicant have been fully and fairly considered by the Director and the TCAB in accordance with the law and legal procedure.”

11.  The 14-day period for the applicant to appeal the Decision, as stipulated by Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), expired on 30 October 2018.  On 29 November 2019, the applicant filed a summons together with supporting affirmation to apply for leave to appeal out of time.  In his supporting affirmation, he explained that he lacked the financial means to obtain legal advice regarding the procedure of appeal and he was under the wrong impression that there was no further remedy once the 14-day limit had expired.  He considered that there are merits in his appeal, thus justifying the court to exercise its discretion to allow him to appeal out of time.  He provided no explanation why he had not lodged the appeal within the time limit. 

12.  The hearing took place on 17 December 2019 and by the Leave Decision of 14 May 2020, the Judge dismissed the application for leave to appeal the Decision out of time.  At the hearing, the applicant reiterated that he did not have the financial means to seek legal advice and he did not know he had to lodge the appeal within 14 days of the judgment.  The Judge did not find it an acceptable excuse for the delay. The Judge took the view that as the applicant was able to follow the correct procedures in applying for leave for judicial review of the Board’s decision and in making the application for leave to appeal out of time, he should have no difficulty finding out the correct procedure and time limit for appeal if he pursued the matter with reasonable diligence. 

13.  More importantly, the Judge found no merit in the underlying application as the applicant did not provide any arguable ground of appeal apart from saying that there are merits in his appeal.  As such, the Judge found no reasonable prospect of success in the applicant’s intended appeal and therefore dismissed his summons accordingly.

The renewed application

14.  On 1 June 2020, the applicant filed a summons together with supporting affirmation seeking leave to appeal against the Leave Decision.  The summons was late for 5 days.  Under Order 59 Rule 2B(6) of the Rules of the High Court (Cap. 4A), this Court may extend the time for making the application for leave to appeal.

15.  In his supporting affirmation, the applicant repeated his reasons for the delay and that he believed there are merits in his appeal. 

16.  In his written submissions, he advanced the following:

(1)  It is his fundamental human right not to be subject to torture and high standards of fairness are required in determination of his non-refoulement claim as the decision had significant implications for his substantive right and his claim.  He cited ST v Director of Immigration[6] and quoted some passages in Secretary for Security v Sakthevel Prabakar[7] in support of his assertions. 

(2)  The Adjudicator had acted in a procedurally unfair manner without properly assessing his credibility.  He averred that by the doctrine of reasonableness, an administrative decision should be set aside if it was unreasonable.  He cited Associated Provincial Picture Houses Limited v Wednesbury Corporation[8] and R v Ministry of Defence ex p. Smith[9] in support of his complaint.

(3)  He referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is a provision concerning the late filing of notice of appeal to the Board.

Legal principles

17.  As rightly pointed out by Lam VP in Farrukh Zaib v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office & other [2020] HKCA 408 at [21], whilst it is technically possible to appeal against a lower court’s decision refusing an extension of time for appealing, it is more appropriate to renew the application for extension of time before the Court of Appeal[10].   Accordingly, we shall treat the applicant’s summons as if it were a renewed application for leave to appeal against the Decision of out of time.

18.  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 respondent if an extension of time were granted.

19.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would still examine if he has merit in the intended appeal: see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

20.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A).

Discussion

21.  We do not find the applicant’s explanation about his ignorance of law and court procedures to be a good reason for his delay and we agree with the Judge that should he exercise due diligence, he should be able to file the appeal within time.  In the circumstances, the applicant is required to demonstrate that the intended appeal has real prospect of success, before leave of appeal is to be granted, see Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020.

22.  We now turn to the merit of the intended appeal.

23.  None of the grounds as set out in the applicant’s written submissions pinpointed any error of law or procedural unfairness or irregularities of the Decision and they are not valid grounds of appeal. 

24.  Further, upon our careful review of the Board’s decision, the Board rejected the applicant’s case on the issue of credibility and even on the applicant’s account of event, the alleged attack by his enemy did not attain the minimum severity for torture and there was no evidence suggesting that the applicant would face any real risk of harm or ill-treatment if refouled.  The findings are within the province of the Board and the court will not intervene in the absence of any valid public law grounds.

25.  In our judgment, nothing set out in the written submissions can constitute a valid ground of the intended appeal.

26.  We are also satisfied that the Judge had reviewed the Board’s decision carefully and we see no flaw in the Judge’s decision.

27.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 1 June 2020 is dismissed accordingly.

28.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap.4A), no party may request this determination be reconsidered at an oral hearing inter partes.

[1] [2018] HKCFI 2312

[2] [2020] HKCFI 307

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6] The correct citation should be ST v Betty Kwan [2014] 4 HKLRD 277.

[7] [2005] 1 HKLRD 289

[8] [1948] 1 KB 223

[9] [1996] 1 All ER 256

[10] see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8].