RE HUSSAIN TANVEER

CAMP 122/2018

[2018] HKCA 745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 122 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 827 OF 2017)

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JUDGMENT

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  By a summons filed by the applicant on 19 July 2018, the applicant seeks an extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 15 June 2018 refusing leave to apply for judicial review.  The intended judicial review was against the decision of Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 5 December 2016 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 17 February 2015 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 29 August 2009 and was arrested on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on 31 August 2009. 

3.  The applicant’s claim was based on his fear that, if he were to return to Pakistan, he would be harmed, or even killed by his cousin over a land dispute.

4.  By a Notice of Decision dated 17 February 2015, the Director decided against the applicant’s claim. The Director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a Notice of Further Decision dated 28 March 2017, the director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s first decision. The Board rejected the applicant’s appeal by its decision dated 5 December 2016 (“the Board’s Decision”).  The Board found that there was a lack of credibility on the applicant’s case and even on the facts of the applicant’s own case that it would be unlikely that the assailants would still have the interest, huge recourses and manpower to locate the applicant all over Pakistan if he were to relocate to other areas away from his home village, and concluded that the applicant had failed to establish his case under any of the applicable grounds. By a further decision dated 27 October 2017, the Board also rejected the applicant’s appeal on his claim under BOR 2 risk.

The deputy judge’s decision

7.  The applicant filed a Form 86 on 31 October 2017.  The Form 86 contained no ground for seeking relief.  In the affirmation in support of the leave application dated the same date, the applicant complained that the Director and the Board reached their decisions without proper consideration of his claim and failed to give sufficient weight to COI to assess the dangerous situation in Pakistan.  The applicant merely exhibited copies of the decisions of the Director and the Board without elaborating further his said complaints or put forward any further grounds for his intended challenge.

8.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge gave the following reasons in refusing leave to apply for judicial review at paragraphs 14 to 16 of the CALL-1 form:

“14. I do not find any merit or basis in what appear to me just very vague and bare assertions of the applicant without any substance or elaboration. As both the Director and the Board have clearly found on the facts of the applicant’s own case that his land dispute with AZ was a private matter without any involvement of the state or the police that plainly state protection would be available to the applicant if the threats from AZ still persisted upon his return as well as the availability of reasonable internal relocation to other parts of Pakistan, in which case there cannot be any justification to the applicant being afforded non-refoulement protection in Hong Kong, and that any purported reliance on COI to assess whatever other dangerous situations may be in Pakistan but not relevant to his claim seems to me futile and meaningless in the circumstances.

15. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Discussion

9.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review, which expired on 29 June 2018.  On 19 July 2018, the applicant took out the present summons seeking leave to appeal out of time.

10.  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.

11.  In this case, the applicant was late by 3 weeks.  In the applicant’s affirmation of 19 July 2018, the applicant explained that the delay was due to language barrier and misunderstanding on the procedures and time limit in applying for leave for judicial review.  As the delay is not excessively inordinate, we are prepared to excuse the delay.  Notwithstanding this, the arguability of the intended appeal is an important consideration in an application for extension of time, 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.  The crucial consideration in this application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review.

12.  We now turn to assess the prospect of the applicant’s intended appeal against the Judge’s decision.  The applicant did not include any draft notice of appeal in his documents filed with the court.  In the applicant’s written submissions of 7 August 2018, he essentially set out the following grounds:

(1)   The Director failed to consider whether state protection existed and whether there was a consistent pattern of gross, flagrant or mass violations of human rights in Pakistan.

(2)   The Director failed to inquire, consider and assess fairly the relevant COI conditions of Pakistan and therefore, the Director could not possibly reach a fair and reasonable decision on his non-refoulement claim.

(3)   It was unreasonable for the Director to find that internal relocation was an option for the applicant and there was procedural unfairness that the applicant was not notified in advance before the screening interview and he was only asked for a single question whether he would be fine if he were to relocate elsewhere in Pakistan.

(4)   The Director failed to take into account relevant facts and took into account some irrelevant facts and as a consequence, arrived at an unreasonable decision in dismissing the applicant’s case. 

13.  Grounds 1 and 2 can be dealt with together.  The Director had duly explained in [20.1] to [20.8] of the decision that (i) the applicant’s dispute with his cousin was solely private in nature and there was no indication that any government official or anyone acting in official capacity had involved; (ii) the Pakistani police had discharged their duties properly in handling the applicant’s report and the mere fact that the Pakistan police did not arrest the cousin and his followers could not be taken as inaction of the police; (iii) the applicant’s assertion that the police and the authorities would not protect him because of the affluence and connection with the ruling party of the applicant’s cousin and the prevalent corruption in Pakistan was considered in the context of objective COI as duly set out in [20.5.1] to [20.6.4] of the decision; and (iv) the Director had considered a set of objective COI which corroborated with the applicant’s assertion and another set of objective COI which showed that Pakistani Government had taken practical steps to monitor the conduct of Pakistani police and improved their effectiveness.  We take the view that the Director is perfectly entitled to come to the conclusion that state protection is available and reasonable.  We did not see any error in law in the Director’s decision.  Grounds 1 and 2 are devoid of merits and have no reasonable prospect of success.

14.  For ground 3, the Director had rightly set out his findings in [21.1] to [21.3] of the decision and we agree with Director that there are many options for internal relocation in Pakistan for the applicant as an abled-bodied adult with 12 years of formal education and 10 years working experience and it is far-fetched to assume the applicant’s cousin could exert his influence all over the county to locate the applicant.  Besides, the applicant’s complaint that he was not notified before the screening interview and he was not given adequate chance in addressing on the issue of internal relocation were never raised in the Board’s hearing nor before the Judge.  We further note from [6.36] and [21.2] of the Director’s decision that the applicant was provided with sufficient chances to raise his views and objections on internal relocation at the interview with the immigration officer. The complaint in ground 3 is without basis and we do not see any chance of success.

15.  Ground 4 contains no substance and is doomed to fail.  Having read the full decision of the Director’s decision, we take the view that the Director had clearly set out the facts and the law for assessing the applicant’s claim on all applicable grounds and we do not see any procedural error or unfairness in the decision.  It is plain and clear that the applicant’s case of risk of harm had been carefully considered and justifiably rejected.  Determination of merits of the case is primarily a matter for the Board, whose role will not be usurped by the court.  See: 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. 

16.  In our view, both the Director and the Board had fully reviewed the applicant’s case.  We are satisfied that the findings of the Director and the Board and the observations of the Judge are supported by evidence and justified.  We agree with the Judge’s view that there was no error of law or procedure, nor any evidence of procedural unfairness, nor a failure to adhere to a high standard of fairness.

17.  For these reasons we do not see any prospect of success in the intended appeal.  Though the delay can be excused, we would not grant extension of time for a hopeless appeal, and the summons of 19 July 2018 is dismissed accordingly.

18.  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 that this determination be reconsidered inter partes at an oral hearing.