IJAZ AHSAN v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 402 /2019

[2020] HKCA 61

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 402 OF 2019

(ON APPEAL FROM HCAL NO 819 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 12 December 2019 ([2019] HKCA 1399) dismissing his appeal against the decision of Deputy High Court Judge Josiah Lam on 22 August 2019 ([2019] HKCFI 2058) refusing leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 19 December 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submission on 30 December 2019.  We think it appropriate to determine this application on paper and will do so accordingly.

3.  By a Notice of Decision dated 7 June 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

4.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decision and his appeal was dismissed by the Board on 29 March 2018. The Board found that the applicant is not a witness of truth and his claims regarding his experiences in Pakistan are not credible. 

5.  He filed a Form 86 on 10 May 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  His application was refused by Deputy High Court Judge Josiah Lam on 22 August 2019 as his complaints were not reasonably arguable.

6.  The applicant filed a Notice of Appeal against the decision of the judge on 2 September 2019.  The hearing of the appeal was vacated as the applicant failed to lodge his skeleton argument by the time prescribed under the unless order made by the Registrar of Civil Appeals on 26 September 2019.  The appeal was dealt with on paper.  It was dismissed by the Court of Appeal on 12 December 2019.  The applicant filed a Notice of Motion on 18 December 2019 for leave to appeal to the Court of Final Appeal.

7.  The grounds of appeal as stated in the Notice of Motion may be summarized as follows:

(1)  The applicant did not know his failure to lodge a skeleton submission would cost him an appeal hearing.

(2)  The judges were procedurally unfair.  The Board refused his case for the reason that he can be relocated in Pakistan but it knew how dangerous the Shia people are and it is easy for them to find him.

(3)  The Board said that he was not beaten nor tortured in Pakistan and the judges followed them to make a decision.  He was not tortured physically because they did not find him on time otherwise they would have killed him without hesitation because they are really crazy in following their religion.

(4)  Even if he can be relocated in Pakistan, he cannot support himself.  The Shia followers can find him easily and he will then be killed.

8.  The submissions contained in his written submission may be summarized as follows:

(1)  All his submissions are in good faith and reflect his genuine thoughts.  He has not changed his story.

(2)  The Board had unlawfully fettered its discretion by refusing his appeal, the decision was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness.  It failed to apply high standards of fairness owed to a self-represented claimant.  It provided an English hearing bundle but did not give sufficient time for him to prepare for his appeal.  It had significantly relied on sources of news not officially recognized or were hearsay or outdated that resulted in its groundless speculation that it would be safe for him to return to his home country.  The Board failed to examine the extended concept of state acquiescence.  Its conclusion on the practical steps taken by the Pakistani government was mere speculation.  It also failed to make sufficient enquiry before finalizing its decision.

(3)  The Director failed to consider the concept of extended acquiescence, his conclusion on the Pakistani government’s combat against terrorists was mere speculation. Contrary to what was quoted in the Director’s decision, the corruption and incompetency of “Philippines police”[1] remain serious according to an online document.  The Director failed to advise the applicant to obtain medical report and/or evidence from the Pakistan authorities when assessing BOR 2 risk.

(4)  He relied on the cases of Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743 and C and Others v Director of Immigration and Another (2013) 16 HKCFAR 280.

(5)  He was tortured mentally and physically by the opponents.  Even though it is his personal matter, the opponents have relation with government parties and some senior police.

(6)  The Director mentioned that he can relocate himself in other place but his enemies will not leave him alive as he had insulted their religion.

(7)  If he returns home he will be killed or harmed by his enemy and the government cannot protect him.

(8)  In this case, he does not have any written proof with him.  The Court can examine his body to understand how he was tortured in Pakistan.  When he is here, he is being tortured by his enemy mentally.  His enemies have connection with the police so they can do anything.  In Tale Kang, two people were killed by the enemy when they were attending hearing in court but the police did not do anything because the killers gave a lot of money to the police.

9.  The applicant also raised a number of questions in the written submission for which he seeks the Director’s answers[2].

10.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

11.  The applicant’s grounds of appeal and submissions are bare assertions without evidence in support and do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  He has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his appeal and he has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12.  We therefore dismiss the application for leave to appeal to the Court of Final Appeal.