RE NADEEM AHMED

CAMP 24/2018

[2018] HKCA 198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 24 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 298 of 2017)

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J U D G M E N T

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

1.  By summons filed on 12 March 2018, the applicant seeks leave to appeal out of time against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 23 February 2018 refusing him leave to apply for judicial review.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 26 May 2017 dismissing his appeal against the decisions of the Director of Immigration (the “Director”) dated 7 January 2016 and 12 December 2016 rejecting the applicant’s non-refoulement claim.

2.  We consider it is appropriate to determine the application without a hearing on the basis of the applicant’s written submissions only, pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A.

3.  The applicant is a Pakistani national.  He went from Pakistan to Shenzhen, and eventually entered Hong Kong illegally in September 2013.  He was arrested by the police on 2 January 2014 for remaining in Hong Kong illegally.  On 8 January 2014, he made a non-refoulement protection claim.  Upon the commencement of the unified screening mechanism, his claim was assessed under all applicable grounds, namely, torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].

4.  The applicant’s claim is based on his fear that if he were to return to Pakistan, he would be ill-treated or killed by a former Nazim and his people, including his son and the members of Pakistan People’s Party, as a result of a dispute during a local election between the Nazim and his son and the applicant and his family, who supported the Pakistan Muslim League (N).  The applicant’s case in gist is that because they bore a grudge against the applicant’s family, the Nazim and his people shot and killed his cousin and wounded his brother in 2003.  Thereafter, the applicant and his family were targeted by the Nazim and his son.  There had been countless fist fights between the Nazim’s people and the applicant and his family.  On a few occasions, the applicant was badly injured and had to be hospitalised.  Further, two motor vehicles and an expensive motorbike were stolen from the applicant’s father and whose furniture shop was also robbed and vandalised.  Despite reports were made to the police about the attack to the cousin, the theft and the robbery of the shop, the police were reluctant to register the complaints and had refused to investigate or take action.  As a result of a verbal threat to shoot him and fearing for his own safety, the applicant fled Pakistan in September 2013 and came to Hong Kong.  The applicant said the Nazim and his people continued to disturb his family after his departure.   

5.  Upon the Director’s rejection of the non-refoulement claim, the applicant appealed to the Board.  An oral hearing was held on 22 December 2016.  The applicant elected not to give evidence at the hearing.

6.  By a decision dated 26 May 2017, the Board dismissed the applicant’s appeal.  For reasons given in paragraphs 21 to 44 of the decision, the adjudicator doubted the applicant’s case and did not accept he was a genuine claimant.  Notwithstanding that, the Adjudicator went on to assess the applicant’s claim in accordance with the relevant law.  The Adjudicator concluded that the applicant’s case, even if accepted, did not come within the ambit of a torture claim, BOR 2 risk claim, BOR 3 risk claim or a persecution claim.  He also noted the availability of state protection in Pakistan in light of the improvement in the country and the change in the political scene.  He further accepted that internal relocation was possible and it would not be unduly harsh for the applicant to relocate to places away from his home area.

7.  The applicant filed his Form 86 on 15 June 2017.  Although he named the Director as the putative respondent, his supporting affirmation is directed solely at the Board’s decision.  The Judge rightly regarded the applicant’s intended judicial review is against the decision of the Board.

8.  The applicant did not set out the grounds for the application in his Form 86.  In his supporting affirmation, he stated that relocation is practically impossible and state protection is non-existent, complaining also that the adjudicator had failed to consider all the evidence provided by him. 

9.  Upon a consideration of the papers filed by the applicant, 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.  Her reasons are encapsulated in paragraphs 23 to 25 in the CALL-1 Form.

10.  The time for the applicant to appeal against the Judge’s refusal of leave to apply for judicial review expired on 9 March 2018[5].  On 12 March 2018, the applicant took out the present summons seeking leave to appeal out of time.

11.  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 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). 

12.  In this case, the applicant was late by three days.  The delay is not inordinate.  The applicant explained in his affirmation that he could not read or write and it was after being told by his friend that he knew he had to submit an appeal against the decision.  We are prepared to accept the applicant’s reason for the delay.

13.  We turn to assess the prospect of the applicant’s intended appeal against the Judge’s decision.  The applicant did not set out any ground of appeal in his summons or supporting affirmation.  In his written submission dated 19 March 2018, the applicant complains that the Board failed to judge and look into the situation of the political party system in Pakistan.  It is said that in Pakistan, the police and other government departments are run by political parties and their political enemies cannot survive in the country.  He says political crises involving the Pakistan People’s Party and Muslim League Noon are getting deeper day by day with many cases of politically motivated killings.  He further says that there is a lack of rule of law and due process in his country, coupled with serious corruptions in the government and police.  The applicant reiterates his enemies, who have strong political connections, are still looking for him, and he will be tortured or murdered if he were to return to Pakistan.  He concludes that as he lacks support and money to bribe the police and government departments, he cannot return to Pakistan at this moment because he will not be able to survive under the existing system.  

14.  Evidently, the adjudicator had given the applicant’s case and materials careful consideration.  His conclusion that the applicant’s case is not credible and he is not a genuine claimant is based on a number of inconsistencies and inherently improbable features in the applicant’s case that he identified in his decision[6].  He had also explained his reasons for concluding that the applicant’s case, even if accepted to be credible, cannot come within any of the grounds for non-refoulement protection[7]. 

15.  In coming to the view that state protection is available, the adjudicator noted[8] that since the general election in 2013, the party that the applicant and his family supported has become the governing party and is occupying an overwhelming majority in the legislative assembly of Punjab whereas the party that the former Nazim belongs to is now a very small minority party.  While accepting that various Country of Origin information do show instances of police taking bribes, the report of the United Nations in 2016 indicates there is improvement in the situation with regular training being given to police on technical skills and protection of human rights.     

16.  The adjudicator had also assessed the applicant’s personal circumstances and information on Pakistan’s geographical situation[9] before concluding that internal relocation is available and it is not unduly harsh and unreasonable for the applicant to relocate away from his home area.

17.  In our view, the Board had fully reviewed the applicant’s case. We agree with the Judge that the applicant has not shown any reasonably arguable ground for judicially reviewing the Board’s decision, and the intended judicial review has no realistic prospect of success.  The applicant having failed to meet the threshold for bringing judicial review, the Judge was correct to refuse to give him leave: see Po Fan Chan v. Winnie Cheung (2007) 10 HKCFAR 676. 

18.  Given that the intended appeal against the Judge’s decision has no prospect of success, it will 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.

19.  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.