RE SOHAIL MUHAMMAD ANJUM

CACV 57/2018

[2018] HKCA 385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 57 OF 2018

(ON APPEAL FROM HCAL 406 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 appeal against the decision of Deputy High Court Judge Woodcock on 23 February 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Pakistan. He claimed to have entered Hong Kong illegally on 21 October 2009. He was arrested by the police on the same day. On 24 October 2009, he lodged a torture claim. This claim was taken to be a non-refoulement claim after the commencement of the unified screening mechanism in 2014. His claim is based on the threat from a terrorist group Lashkare Taybe (LT). According to the applicant, he was a former member of LT. After he slipped away from the training centre of LT, he was attacked by members of LT on numerous occasions.

2.  The Director decided against the claims on 14 August 2015.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”).  By a Further Decision of 14 December 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 22 February 2017, the Board dismissed the appeals on 16 June 2017 (“Board Decision”).

4.  The intended judicial review was in respect of the Director Decision and the Board Decision.  Neither the Form 86 nor the affirmation filed by the applicant on 14 July 2017 gave any grounds for judicial review.  On 27 October 2017, the applicant wrote a letter to the court to submit new grounds for judicial review:

(1)  The applicant requested a non-Muslim Urdu speaking Indian interpreter for the Board hearing but he was assigned with a Pakistani interpreter.  The applicant was afraid to talk to the interpreter because he believed LT was very well-known and had a very large network.

(2)  The applicant requested an adjournment of the Board hearing on 22 February 2017 due to his skin conditions but this was refused.

5.  The judge reviewed the materials carefully.  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 in refusing leave at [16] to [24] of the CALL-1 Form of 23 February 2018:

“16. In the applicant’s application form he names the TCAB only as the respondent but in his affirmation he names both the Director and the TCAB. In my view, this is not the right course of action to take. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or a rehearing. There is no room for a judicial review of the Director’s decision. I have considered his leave application against the decision of the TCAB only.

17. The affirmation actually contains no grounds. The applicant states that the LT is a well known terrorist group that he was once a member of but he managed to escape from their training camp. He states they now want to kill him to make an example of him and strike terror within the people. This will ensure no one else dares to leave the group. In addition, the applicant knows the locations of their secret training camps and some other secrets so they want to kill him to protect their secrets.

18. This was not actually put forward as part of his claim before the Director or the adjudicator. If this was indeed true, the LT had had plenty of opportunity to kill the applicant after he escaped from their training camp and made it home.

19. He did write to this court on 27 October 2017 and submit two grounds of judicial review. He says in his non-refoulement claim form submitted in 2014 he requested a non-Muslim, Urdu speaking Indian interpreter. However, for the appeal hearing, the TCAB provided him with a Pakistani interpreter. The applicant’s concern was that the interpreter could be a Pakistani national and because the applicant was once involved with LT, they had a very large network. Perhaps it reached as far as Hong Kong and that particular interpreter. However, there is no request to change interpreters or any complaint in the decision to the adjudicator. I see no merit in this ground.

20. He also submitted that there was a ground of procedural impropriety/unfairness when the adjudicator refused to adjourn the appeal hearing at the applicant’s request on the day of the hearing. The applicant said on 16 February 2017 he went to the hospital and was given medicine that made his skin turned black and painful. He said on the day of the hearing which was seven days later, he was in great discomfort and he could barely talk. He requested an adjournment because he was not physically fit to be interviewed. The adjudicator replied that it would not take long and the appeal would proceed. The applicant said after the appeal hearing he rushed to the hospital to be treated.

21. I have had sight of a referral letter to the Department of dermatology that is dated 22 February 2017 and printed at 12:09pm, the same day as the appeal hearing which is from the Department of accident and emergency. It says the applicant previously visited A&E for acne on his face and was prescribed some cream but the problem deteriorated with increased black pigmentation. It says the applicant is worried and cannot go out due to cosmetic problems. There is no mention of severe pain, discomfort and an inability to speak. There is a second letter from a private doctor dated 15 March 2017 referring to a history of consultation for pimples, a prescription of cream and a reaction to it.

22. There is no mention in the decision of the adjudicator of an application for an adjournment because of medical reasons. In any event, that referral letter does not indicate the applicant was in any way that day not physically fit to be interviewed or could barely talk. I see no merit in this ground.

23. I have to consider with rigourous examination and anxious scrutiny the papers and decision of this application. I have looked at the adjudicator’s analysis of the claim and evidence. I do not find any error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

24. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

6.  In the notice of appeal of 9 March 2018, the applicant repeated the same grounds as his letter dated 27 October 2017.  He also provided a note from a private doctor dated 15 March 2017 in the letter.  He claimed that this note “clearly mentioned that [his] face was burning in pain…indicating [he] was not well to have the interview conducted”.

7.  In his skeleton submissions dated 4 June 2018, the applicant submitted that the judge erred in not considering his legal aid application.  He also submitted that the Pakistani authorities are corrupt and inefficient.

8.  Having considered the applicant’s case in light of the materials before us, we found the judge’s observations to be justified.

9.  For the ground concerning the interpreter at the Board hearing, the applicant could not provide any evidence to show that the interpreter was related to LT. Further, the applicant only said he was “very worried to talk to a Pakistani national”.  No good reason for his declining to speak with the interpreter at the hearing having been given, this ground has no merit.

10.  In relation to the ground concerning the unsuccessful application for an adjournment of the Board hearing, the applicant provided 2 documents for his medical condition.  The first document is a Referral Letter dated 22 February 2017 (i.e. the day of the Board hearing).  It reads “The…patient previously visited A&E for acne on his face…the problem deteriorated with increased black pigmentation.  He is worried and cannot go out due to cosmetic problems”.  This document was attached to the letter dated 27 October 2017. 

11.  The second document is a note dated 15 March 2017 from a private doctor [p.9 Appeal Bundle].  It reads “I first saw the…patient on 15/3/2017 and he was suffering from dark patches on his face…He noticed redness, sensation of burning and pain on his face after three days [from 16/2/2017]…In my opinion, he was suffering from postinflammatory hyperpigmentation”.

12.  The second document was apparently never submitted at the court below.  The applicant did not explain why he did not do so.  The document was clearly available to the applicant at the time of the hearing below and therefore the applicant is unable to satisfy the first condition in Ladd v Marshall for the adducing of fresh evidence on appeal.  It is therefore inappropriate for the applicant to seek to adduce this new evidence on appeal, and this court therefore will not have regard to the second document.

13.  The applicant was apparently suffering from cosmetic problems on the day of the Board hearing.  There is no evidence to suggest that his condition was so serious that it prevented him from properly conducting the hearing.  The Board was right in refusing the adjournment application.  There is no merit in this ground.

14.  As for the grounds raised in the skeleton submissions, the applicant failed to show how his legal aid application can have any impact on his judicial review leave application.  The applicant also argues that the Pakistani authorities are corrupt and inefficient but he is unable to support this assertion with any evidence.  Further, 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.

15.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

16.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.