KIANI ZAFARAN ALI v. TORTURE CLAIMS APPEAL BOARD

CAMP 22/2018

[2018] HKCA 257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 22 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO 300 OF 2017)

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J U D G M E N T

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

INTRODUCTION

1.  This is an application for extension of time to appeal against the Decision of High Court Judge D’Almada Remedios (“the Judge”) given on 7 February 2018 refusing leave to the applicant to apply for judicial review.   The applicant is a Pakistani national.  The applicant entered Hong Kong via Shenzhen illegally on 21 October 2009 and was arrested by the police on the same day.  On 15 December 2014, he lodged a non-refoulement torture claim.  The Director of Immigration (the “Director”) decided against him on 6 February 2015.  He appealed to the Torture Claims Appeal Board (“the Board”) and after hearing, the Board dismissed the appeal on 8 June 2017. The Board rejected the non-refoulement claims of the applicant on all applicable grounds namely torture risk, BOR 2 risk, BOR 3 risk and persecution risk.  The applicant’s application for judicial review was in respect of the Board’s decision. 

2.  We consider it 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.

Factual Background

3.  The applicant’s claim is based on his fear that if he were to return to Pakistan, he would be harmed or even killed by people of a political party, namely Pakistan Muslim League (Nawaz) (“PML-N”), as a result of a dispute during a local election in which the applicant encouraged people to vote for another political party namely Pakistan Muslim League (Quaid e Azam Group) (“PML-Q”). The applicant alleged that he was attacked by PML-N supporters armed with wooden sticks and iron rods on three different occasions between end of 2008 and June 2009, causing him to suffer multiple bodily injuries.  The applicant sought medical treatment at a private clinic after the first and second attacks.  On the third occasion, he was hospitalized for 3-4 days for a broken right ankle and a face injury which required 5-6 stitches.   The applicant claimed that he did not report the assaults to the police because the PML-N was politically strong and had a good relationship with the police.

4.  The applicant said he was afraid of the PML-N people and decided to leave his home in Jhelum for Lahore which was 30-40 km from his village.  He was contacted by his family and was told that the PML-N people came to look for him for two to three times threatening to kill him.

5.  In September 2009, the applicant claimed that he saw three to four PML-N supporters in Lahore and he thought they were looking for him.  Therefore, he decided to leave Pakistan for China.  He claimed that relocation in Pakistan was not a viable option because the PML-N people would still be able to locate him.  The applicant further claimed that after he came to Hong Kong, his family told him that the PML-N people were still looking for him.

The Intended Judicial Review

6.  The applicant’s Form 86 filed on 16 June 2017 did not provide any ground for seeking relief and he did not file any affidavit in support of his non-refoulement claim.  The Judge considered the matter within general legal principles which are duly set out in [37] to [40] of the CALL-1 Form of 7 February 2018.

7.  After reviewing the materials carefully, the Judge refused to give leave to apply for judicial review.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons for refusing leave at [42] – [46] of the CALL-1 Form :

“ 42. For the sake of completeness, having read through the Director’s decision I do not find any error of law or procedure. Further, I fail to see that the decision has not adhered to a high standard of fairness and is not Wednesbury unreasonable. I am not satisfied that a review of the decision is reasonably arguable with any realistic prospects for success.

43. Turning to the decision of the adjudicator, she has provided detailed reasons for the decision in rejecting the applicant’s claim. She has made it very clear that credibility is the central issue. She also listed in detail as to why she came to the conclusion on this at paragraphs 42-44. Further, at paragraph 43 she cited authority in support of her finding on this.

44. The adjudicator clearly regarded that the inconsistencies rendered the Appellant’s account implausible and unreliable and were of a significant consequence to his credibility.

45. To conclude, in the adjudicator’s findings and her assessment of the applicant’s claim, there is no error of law and no evidence to suggest a failure to comply with the high standard of fairness as governed by Prabakar. Further, the Decision has satisfied Wednesbury reasonableness and has no reasonable prospect of success.

46. The applicant’s application for judicial review is consequently refused.”

Discussion

8.  Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal against the Judge’s refusal of leave to apply for judicial review and it was expired on 21 February 2018.  On 1 March 2018, the applicant took out the present summons seeking leave to appeal out of time.

9.  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).

10.  In this case, the applicant was late by eight days.  He did not file any affirmation to explain the delay and only gave a brief reason in the summons that he has changed his home address and therefore did not receive any letter from the court.  Since the delay is not inordinate, we are prepared to accept the applicant’s reason for the delay.

11.  We turn to examine 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 nor did he file any affirmation in support.  In his written submission faxed to this court on 31 March 2018, the applicant just repeated his story of what happened in Pakistan as set out in [3] – [5] of this Judgment and did not spell out the reasons for his disagreement with the Judge’s findings, nor with the decisions made by the Director and the Board.

12.  We have reviewed and considered those decisions made by the Director and the Board and come to the view that the applicant’s case was duly considered and carefully determined.

13.  Regarding the Board’s decision, the adjudicator found that that the applicant’s case is not credible. There are a large number of inconsistencies between the applicant’s written answer in his non-refoulement claim form, the Notice of Appeal to the Board and his evidence at the oral hearing that rendered his evidence implausible and unreliable.  In coming to the view that state protection is available, the adjudicator noted that based on various update Country of Origin information, the Government of Pakistan has enacted and enforced new legislation to combat corruption, improve the quality of training of the police and provided avenues for complaints against police, thus, there should be sufficient safeguards established by the State for the applicant.  The adjudicator also considered internal relocation to be possible for the applicant as Pakistan allows freedom of movement within its country so that the applicant is free to relocate to another city of his choice should he wish to do so.

14.  In our view, the Board had fully reviewed the applicant’s case. We are satisfied that the findings of the Board and the observations of the Judge, which are well supported by evidence, are fully justified.  We agree with the Judge’s view that there are no errors of law nor any evidence to suggest a failure to comply with the high standard of fairness as required by law as explained in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.  Further, determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court. There is no reasonable basis to challenge the decisions of the Director and the Board.  We agree with the Judge that leave to apply for judicial review should be refused.

15.  For these reasons we do not see any prospect of success in the intended appeal.  Though the delay was short, we would not grant an extension of time for a hopeless appeal to be lodged.  The summons dated 1 March 2018 is dismissed accordingly.

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