RE MUNIR ZAHID

CAMP 46/2018

[2018] HKCA 310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO CAMP 46 OF 2018

(ON APPEAL FROM HCAL 245 OF 2017)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 29 March 2018 refusing leave to the applicant to apply for judicial review. The applicant is a Pakistani national. He left Pakistan for China in December 2011 and sneaked into Hong Kong illegally in March 2012. He was arrested by the police on 4 May 2012. He lodged his non-refoulement claim on 6 May 2012. The applicant’s non-refoulement claim was based on his fear of harm, or even killed, by the Taliban terrorist group, who had tried to force him to be a suicide bomber by drugging and torturing him.

2.  By a Notice of Decision dated 28 October 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim.  After considering the severity and the frequency of the alleged ill-treatment by the Taliban, as well as the unlikelihood that the Taliban would utilize resources to pursue him after his return to Pakistan, the Director took the view that the fear of risk of being harm would not be likely to materialize.  The availability of state protection and the possibility of relocation would also lower the perceived risk of harm.  The Director also considered that the BOR 3 risk, the persecution risk and the torture risk would not warrant the non-refoulement protection in favour of the applicant. 

3.  By a Notice of Further Decision dated 25 October 2016, the Director also considered the BOR 2 risk and decided against the applicant in that respect.

4.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After a hearing held on 6 February 2017, the Board dismissed the appeal.  The Board found that the ill-treatment suffered by the applicant had not attained the minimum level of severity.  The Country of Origin Information (“COI”) also indicated that the Pakistani Government had taken concrete steps to combat terrorism and corruption.  Internal relocation was also a viable option. Having assessed the torture risk, BOR 2 risk, BOR 3 risk, and persecution risk, the Board decided on 12 May 2017 that the applicant failed on all applicable grounds for non-refoulement protection.

5.  The intended judicial review was in respect of the Board’s decision.  The Form 86 filed by the applicant on 26 May 2017 did not contain any ground for judicial review.  In his supporting affirmation dated 26 May 2017, the applicant advanced the following grounds for judicial review:

(1)  the Taliban was still active and powerful in his country and he would be killed if he returned; and

(2)  the Pakistani Government might treat him as “companion/facilitator” to the Taliban and, as a result, would persecute him upon his return.

6.  After summarizing the background of the case and giving consideration of the decisions of the Director and of the Board, the Judge gave the following reasons in refusing leave at [15] to [21] of the CALL-1 Form:

“15. For his fear of being persecuted by the Pakistan government, the only basis that there could be any must be that the Pakistan army in its attack of the Taliban camp may have uncovered the photograph taken of the applicant by the Taliban and therefore somehow regarded him as one of them, but even that unlikely event that he may have as a result ended up in the terrorists warning list of the Pakistani government is negated by the fact that, as pointed out by both the Director and the Board, he was able to leave Pakistan without any problem for China which shows that the state has no adverse interest in him.

16. As for the applicant’s fear of being pursued by the Taliban, I agree that having found in paragraph 66 of her decision that the applicant had indeed been threatened and abducted to a Taliban camp for two months during which he was kept hooded and bound and was subjected to electric shock causing injury and forced to be a suicide bomber, the adjudicator may have understated that such ill-treatments had not attained the minimum level of severity, but once she has also found valid reasons to conclude that it would not be unreasonable or unsafe for the applicant to relocate safely to other parts of Pakistan, there is simply no justification for me to interfere with the Board’s decision, as it was held by the Court of Appeal in TK v Jenkins [2013] 1 HKC 526 when Cheung CJHC stated:

‘32. … the question of internal relocation (otherwise known as internal flight). This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the internal relocation alternative), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.

33. There may be different reasons why the risk of torture is a localised one. For instance, where the torture is not the state or a ‘state agent’, he may not be prepared, willing or able to pursue the claimant outside of the local place in question or to the internal relocation alternative(s) concerned. Or meaningful state protection against the risk of torture is available to the claimant outside of the local place in question or in the internal relocation alternative(s) where the risk of torture is nonexistent or insubstantial. If the risk of torture is for one reason or another a localised one, one must move on to ask whether it is reasonable to expect the torture claimant to relocate to the alternative place or any of the alternative places under consideration or whether it would be unduly harsh to expect him to do so.’

17. Clearly these Taliban men or groups operating in Pakistan are not the state or ‘state agents’, and that even according to the applicant they were being attacked by the Pakistani army when he was able to escape from the camp. As it is plain from both the COI and the applicant’s own evidence that the Taliban were not targeting him specifically but in general looking to abduct and recruit young men in Pakistan for their purposes, hence there is no reason for them to bother to hunt him down after his escape after all these years. As a matter of fact, they may not even be aware that he is still alive so many years after the army’s attack of their camp.

18. Furthermore, despite the existence of such a risk that the applicant may on his return to Pakistan be again targeted by the Taliban for abduction, which is no greater than that to the average young man in Pakistan, and in ignoring the unlikely possibility that this could happen to him twice, it does not alone constitute a sufficient ground for determining that he will be in danger of being subjected to torture, as stated by Cheung CJHC in TK v Jenkins, supra, in paragraph 29 of the judgment:

‘Whilst the decision-maker must take into account all relevant considerations including, where applicable, the existence in the country concerned of ‘a consistent pattern of gross, flagrant or mass violations of human rights’ (art 3(2) of the CAT), that alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the person will be ‘personally at risk’. This is because the aim of the determination under the CAT is to establish ‘whether the individual concerned would be personally at risk of being subjected to torture in the country to which she would return’.’

19. This has in fact been properly considered by the adjudicator as she rightly pointed out in paragraph 161 of her decision that the applicant is not personally at risk:

‘ … The ill-treatment he feared was not on account of his race, religion, nationality, membership of a particular social group or political opinion. He was kidnapped as a potential suicide bomber by the Taliban, threatened and given an electric shock as he refused to comply. His fear did not come within the definition of persecution.’

20. As detailed in the Board’s decision, objective COI also show that ‘Pakistan has continued to work towards structural reforms on counterterrorism’, as well as taken military actions against the various Taliban terrorist groups, and that there is ‘systemic sufficiency of state protection’ in Pakistan available to the applicant, and I am unable to find any error in law or unfairness in procedure for the Board to accordingly conclude, and to have so suggested to him, that it would not be unduly harsh or unreasonable for the applicant to relocate to Islamabad where his childhood friend AK runs a successful family business, or some other part of Pakistan away from the trouble spots where he can safely live and work away from the threats of the Taliban.

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

7.  According to the court record, the Judge’s order and the CALL‑1 Form were sent by post to the applicant on 29 March 2018.

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. The time limit therefore expired on 12 April 2018.  The applicant failed to do so within the time limit.

9.  On 16 April 2018, the applicant took out the present summons seeking leave to appeal out of time.  It was explained in his affirmation in support dated 16 April 2018 that, because of his inability to raise sufficient money to pay for the filing fee at the material times, the application could not bring out the appeal within the prescribed time limit. 

10.  The applicant lodged his written submissions on 16 May 2018.  In the submissions, the applicant reiterated his explanation that he would not raise sufficient money to pay for the court fee so that he could not bring up the appeal within time.  The applicant also advanced the following grounds for the intended appeal:

(a)  the COI was compiled by those who were not Pakistani and did not reflect the real situation in Pakistan;

(b)  the lack of legal and language assistance rendered him unable to submit additional information in respect of his BOR 2 claim; and

(c)  the failure to provide legal representation to him violated the high standards of fairness as laid down by the law.

11.  Having considered the materials and submissions, we considered it appropriate to deal with this application on paper pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court.   

12.  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 the delay; (2) the reason 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 Environment Hygiene [2015] 4 HKC 134, and also Wong Yuk Man v Ng Leung Sing & Anor, HCMP 3217/2015, 22 January 2016. 

13.  The delay is not inordinate.  We are prepared to accept the applicant’s reason for the delay.

14.  As we have previously held, 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, Islam Raja Rais v. Director of Immigration, HCMP 881/2017, 26 June 2017, and Re Gurung Min Bahadur [2018] HKCA 226. The crucial consideration in this application is whether the applicant can demonstrate that there is a reasonable prospect of success in the intended judicial review, see: Po Fan Chan v Winnie Cheung (2007) 10 HKCFAR 676.

15.  We note that the grounds advanced in the applicant’s written submissions had never been relied on as such either in the Form 86 or his supporting affirmation for leave to apply for judicial review.  As this court has said many times before, an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below.  This is equally apposite in an appeal against the refusal of leave.  Otherwise, an applicant could simply disregard the stringent time limit in Order 53, rule 4(1) of the Rules of High Court, see: Re Qadir Sher [2018] HKCA 160, and Re Rizwan alias Rizwan Gulistan [2018] HKCA 162.

16.  In any event, we do not find any merits in the new grounds advanced by the applicant.  The applicant bears the burden to prove a case of risk of torture or ill-treatment.  It is futile for the applicant to simply complain about the inaccuracy of the COI, as he failed to provide any specifics about the same. As we have previously held, even the existence of consistent pattern of gross, flagrant or massive violation of human rights in the home country per se would not constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return, see: Re RS, CACV 206/2012, 20 August 2013, and Gallolu Kankanamalage Nimal Perera v. Director of Immigration, CACV 215/2012, 23 September 2013.  Hence, unless the applicant can provide concrete evidence suggesting state consent or acquiescence, it is impossible for the applicant to demonstrate that there is substantial ground for believing that he would face a real risk of being subjected to torture based on the concept of state consent or acquiescence.

17.  Neither can the complaints about the lack of legal representation help the applicant’s case.  There is no evidential basis to suggest that the Duty Lawyer Service was not available for the applicant’s BOR 2 claim.  As we have repeatedly said, neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration [2009] 2 HKLRD 346 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37.  The applicant already had the benefit of legal representation in presenting his case to the Director.  We do not find anything amiss arising from lack of legal representation in the appeal before the Board.

18.  It is also the applicant’s case that, due to his language limitation, he could not understand the letter from the Immigration Department and so failed to submit additional facts in support of his BOR 2 claim.  We note however that he made no complaint regarding the lack of language assistance, either in his appeal to the Board in respect of his BOR 2 claim, or in his application before the Judge for leave to apply for judicial review.  The complaint was only made for the first time in his written submissions for the present application for leave to appeal out of time.  The applicant admitted in his submissions that he was able to seek assistance if he needed, but he needed some time to understand the letter from the Immigration Department.  For these reasons, we do not accept that the applicant’s complaint of the lack of language assistance has any merits.

19.  Having read the Judge’s observations set out in the CALL-1 Form, we consider that the Judge’s refusal to grant leave to apply for judicial review was fully justified.  As regards the applicant’s fear of persecution by the Pakistani Government, the Judge has rightly observed in [15] of the CALL-1 Form that the applicant encountered no difficulty when he left Pakistan for China.  There is no evidential basis to suggest that the Pakistani Government had regarded him as a member of the Taliban.  The applicant’s fear in this respect is no more than his own speculation.  We find that the Judge is entirely justified to refuse this ground for judicial review.

20.  Given the viability of internal relocation, the Judge concluded in [16] of the CALL-1 Form that the applicant’s fear of being pursued by the Taliban would be unlikely to materialize.  The Judge was perfectly entitled to reach such a conclusion. As the Judge rightly observed in [17] of the CALL-1 Form, it is clear that the Taliban is not a state agent.  Given further the clear findings of the Director and the Board that state protection was available, there is no scope for finding a risk of torture based on the concept of state acquiescence.   

21.  As pointed out by the Judge in [19] of the CALL-1 Form, the Board has rightly observed that there was no evidence that the applicant was targeted because of his race, religion, nationality, membership of a particular social group or political opinions.  As such, the Board was perfectly entitled to conclude that the applicant’s fear does not fall within the definition of persecution.  We do not find anything amiss in this line of reasoning.  Nor can we see any reasonably arguable basis to challenge the Judge’s observation in [18] of the CALL-1 Form that the applicant’s risk of being captured again by the Taliban was no greater than that of the average young man in Pakistan. 

22.  Having considered the materials before us and the applicant’s submissions, we are satisfied that the Board had fully reviewed the applicant’s case.  We do not see any errors of law or procedure in the proceedings before the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process. Determination of merits is a matter for the Board, not the court.  The court will not usurp the Board’s (as well as the Director’s) role as the primary decision maker, see: Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Re Masoom Parves [2018] HKCA 163.  We share the Judge’s view that the applicant’s intended judicial review was not reasonably arguable and that leave to apply for judicial review should be refused. 

23.  For these reasons, we take the view that there is no prospect of success in the intended appeal.  We will not grant extensions of time for hopeless appeals, and accordingly dismiss the summons dated 16 April 2018.