RE NASIR ABDUL

CACV 570/2019

[2021] HKCA 997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 570 OF 2019

(ON APPEAL FROM HCAL NO. 677 OF 2018)

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J U D G M E N T

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The Court:

1.  This is the applicant’s application for relief from sanction for failing to observe the unless order dated 13 May 2020 whereby he was required to lodge two sets of appeal bundle for his appeal by no later than 12 June 2020 failing which his appeal would be dismissed.  Having considered the material before us, we are of the view that this application can be disposed of on paper without a hearing.

Background

2.  The applicant, a national of Pakistan, entered Hong Kong on 9 January 2015 illegally and was arrested by the police on 12 January 2015.  On 7 May 2015, he raised a non-refoulement claim and requested to re-open his torture claim which had been withdrawn on 20 March 2010. 

3.  The applicant’s claim was based on threats from a group of Sunni Muslims and another group of Shia Muslims.  The details of the applicant’s claim have been summarised by the judge at [2] to [7] of the CALL-1 Form.

4.  By a Notice of Decision dated 4 August 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 11 July 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.  After the hearing on 31 January 2018, the Board dismissed the appeal on 6 April 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [16] of the Board’s Decision, the Board found that certain aspects of the applicant’s claim were exaggerated, inherently implausible or vague.  The Board held at [23] – [24] that the applicant is unlikely to suffer from the ill-treatment he feared (viz. torture and murder).  The Board was also satisfied at [24(i)] that state protection would be available for the applicant and at [24(j)] that internal relocation would be viable.

The Judge’s decision

8.  The applicant filed a Form 86 on 19 April 2018which was amended on 9 November 2018.  The Amended Form 86 contained the following grounds for judicial review:

(1)  the Board failed to apply the correct legal test in assessing his credibility or to give adequate reasons for dismissing his claim; 

(2)  the Board misdirected herself on the law by attaching no weight to the primary evidence in assessing the credibility of his claim; and

(3)  the Board’s decision is irrational in material aspects. 

9.  In the affirmation dated 19 April 2018, the applicant deposed that he was worried that his enemy would kill him if he were to return to Pakistan.  He claimed that his enemy was strong and no one in Pakistan could help him.

10.  In the second affirmation dated 17 December 2018, the applicant gave reasons for the application to amend the Form 86.

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [14] to [22] of the CALL-1 Form:

“14. The Applicant’s complaints under the first two grounds about the adjudicator’s failure to apply the correct test and placing no weight on the primary facts in assessing his credibility can in fact be considered together.

15. Specifically for Ground (1) the Applicant complains that the adjudicator’s analysis of his claim was based on an error or confusion as to the material facts about the two Shooting Incidents in May 2012 when men fired shots outside his home and threatened his father that they would kill the Applicant if he were to convert to Shia Muslim, of which he argues that the adjudicator was wrong to find as a fact that he claimed to be present in both incidents when he was not in the first incident, and that his account of both of them were both vague and unreliable to be given any weight as both factually incorrect and that his evidence was all along consistent.

16. As for Ground (2), the Applicant’s complaint is that the adjudicator was unreasonable not to place any weight on the primary evidence that he was being subjected to threats from the Shia Muslims notwithstanding having been attacked by two Shia men at the bazaar in the Assault Incident.

17. Whilst it is true that the adjudicator was factually incorrect to state in [16a] that the Applicant had suggested in his NCF and the Answers that he was present during the First Shooting Incident when in fact he did not do so, and given the consistent evidence given by him as to the threats from both Sunni and Shia Muslims, I agree that there may be merits in his complaint over adjudicator’s finding that some aspects of his claim as too vague to be given any weight, but the adjudicator was in my judgment however entitled to find in her final analysis in [24] that the level of risk of the Applicant being subject to such ill-treatment if he was to be refouled to Pakistan was low given the unchallenged facts that “the crux of the Applicant’s dispute with his enemies relate to an incident that took place many years ago” that he had “resided in the New Abadi home and led a relatively normal life for some two years”, and that “The Applicant was then able to spend the next two years in Lahore living peacefully without disturbance by his enemies … despite the Applicant’s father claiming that the Applicant’s enemies all knew he was residing in Lahore.”

18. The same can be said about the Applicant’s complaint under Ground (3), in which the adjudicator was said to be irrational in finding that there was no intention of the two men who attacked him at the bazaar to kill him, which was obviously just a statement of fact by the adjudicator, perhaps unnecessarily so in the circumstances as the threats of possible serious harm or even death in the future were obviously there, but for the same reasons given above, the adjudicator was entitled to find in her analysis based on the evidence taken as a whole as well as the availability of state protection that the level of such risk would be low in the circumstances of the Applicant’s case.

19. Above all, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526, and I do not find any basis to challenge such finding of the Director or the Board.

20. At the hearing of his application before me, the Applicant asked for more time to be allowed to remain in Hong Kong so that he may complete his medical treatment which he has been receiving in the government hospital, the same request made to the adjudicator referred to in the Board’s decision and of which the adjudicator was right to find not a valid ground for his non-refoulement claim [24h].

21. In the premises I do not find any of the grounds of the Applicant reasonably arguable for his intended challenge, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, nor do I 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.

22.  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.”

Grounds for appeal and relief from sanction application

12.  In the Notice of Appeal dated 10 December 2019, the applicant contended that:

“[the judge] has refused my application for judicial review merely on the grounds that my claim is localised one and I have option to relocate to other parts of Pakistan ignoring the basic facts and intensity of issue that such religious fundamentalists have strong connection in all parts of the country and they have their members almost everywhere. So, it is not safe for me to stay there in this present era of IT when tracing a person is not difficult.”

13.  On 13 May 2020, Barma JA made an order that unless the applicant lodged with the court two sets of appeal bundle by no later than 5 p.m. on 12 June 2020, the appeal should stand dismissed.  The applicant failed to file two sets of appeal bundle by 12 June 2020 and his appeal was therefore dismissed on 15 June 2020.

14.  By a summons dated 16 July 2020, the applicant applied for the following order:

(1)  The order dated 15 June 2020 dismissing the appeal be set aside;

(2)  The applicant should file two sets of appeal bundle within 28 days; and

(3)  The appeal in CACV 570/2019 be restored with an oral hearing.  The applicant shall be given the assistance of an interpreter in the oral hearing.

15.  In the affirmation filed on the same day, the applicant deposed that he did not receive the letter enclosing the order dated 13 May 2020.  He suspected that the mail was lost as a result of the high volume of mails and increased processing time in the post office due to the public health situation.  He confirmed that he received the letter enclosing the order dismissing the appeal.  He asked for more time to comply with the order to lodge appeal bundles because he was acting in person and English is not his first language.

16.  In the written submissions filed in support of the appeal (p.27 of the application bundle), the applicant referred to the speech by the Prime Minister of Pakistan and explained why it is unsafe for him to go back to Pakistan.

Discussion

17.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

18.  On an application for relief from any sanction imposed for a failure to comply with a court order, the court shall consider all the circumstances including the matters under Order 2, rule 5 of the Rules of the High Court (Cap. 4A). 

19.  In The Incorporated Owners of Yue Sun Mansion v Lake Side Elderly Centre Limited (unreported, HCMP 556/2017, 25 October 2017) at para 12, the court held that:

“Order 2 Rule 5 directs the court to have regard to all the circumstances of the case including the matters set out at Rule 5(1) in an application for relief. Those matters, though helpful as a checklist of relevant factors, are not meant to be exhaustive. They serve to highlight the grant of relief is discretionary and one must have regard to the facts and circumstances of the case in the exercise of discretion bearing in mind the different interests and different factors involved. It is a multi-facet balancing exercise with no single factor being conclusive. Counsel referred us to several cases in which the courts had to consider the operation of Order 2 Rule 5. We derive some guidance from the judgments of Fok J (as he then was) in Top One International (China) Property Group Co Ltd v Top One Property Group Ltd [2011] 1 HKLRD 606, Kwan JA in Tso Yuk Yin v Yiu Ngai Interior Design & Decoration Co Ltd CACV 245 of 2009, 12 Sept 2011 and Chu JA in Schindler Lifts (Hong Kong) Ltd v Nikko Services Ltd CACV 250 of 2010, 3 August 2012. However, as we said, much depends on the facts and circumstances of the case in question.”

20.  The passage above was applied by this court in Labrador Nolito Blazado [2018] HKCA 720 at [11].

21.  Even though more than 28 days have passed since 14 July 2020, the applicant has still failed to supply the appeal bundles.  The application for relief from sanction ought to be dismissed for this reason alone.  Despite this failure, we shall nonetheless consider his application on its merits.

22.  The judge has held at [19] that there was no basis to challenge the findings by the Board that the risk to the applicant was a localized one and that he may safely relocate to other parts of the country.  In the notice of appeal, the applicant contended that the judge erred in finding that the applicant might safely relocate to other parts of the country.  He claimed that those intending to harm him are well connected and could easily locate him with the help of computer technology.

23.  It is not sufficient for the applicant to rely on a bare assertion that it is unsafe for him to return.  For the intended appeal, the applicant must identify the basis (such as a public law error on the part of the Board) which ought to have been considered by the judge when evaluating the Board’s finding on internal relocation.  The applicant has failed to do so and the intended appeal therefore has no merit.  The summons of 16 July 2020 is dismissed accordingly.

24.  We are also of the view that the application is totally without merit.  We therefore make an order that no party may request this determination be reconsidered at an oral hearing inter partes.