RE ASGHAR ADNAN

CAMP 164/2018

[2019] HKCA 556

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 164 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO 972 OF 2017)

____________

____________

___________________

J U D G M E N T

___________________

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

Introduction

1.  By a decision dated 24 August 2018 (“the Deputy Judge’s Decision”) [2018] HKCFI 1573, Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 18 August 2017 dismissing his appeal regarding his non‑refoulement claim (“the Board’s Decision) and the decisions of the Director of Immigration (“the Director”) dated 18 April 2016 (“the Director’s First Decision”) and 3 July 2017 (“the Director’s Second Decision”).

2.  The applicant took out a summons on 10 September 2018 before the Deputy Judge seeking leave to appeal the Deputy Judge’s Decision out of time.  Pursuant to Order 53 rule 3(4) of Rules of High Court, the 14-day period expired on 7 September 2018.  The applicant was three days out of time.  On 30 October 2018, the Deputy Judge refused his application to appeal out of time. 

3.  The applicant now renews the extension of time application to this Court by way of a summons dated 9 November 2018 (“the Summons”).  The applicant failed to lodge his written submissions pursuant to the directions of the Registrar of Civil Appeal given on 13 November 2018.  We will proceed to consider this appeal on the basis of the materials already available to us.  Having considered the documents, we take the view that the renewed application can be disposed of on paper without an oral hearing pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court (Cap 4A). We now hand down our judgment.

Background

4.  The applicant is a national of Pakistan.  He first came to Hong Kong on 5 March 2015 and was arrested by the police in Hong Kong on 25 March 2015.  He lodged a non-refoulement claim which was received by the Immigration Department on 27 April 2015.

5.  The details of the applicant’s claim and his personal background were set out in paragraphs 5 - 6 of the Director’s First Decision, and paragraphs 20 - 30 of the Board’s Decision.

6.  Briefly stated, the applicant claimed that he started to assist the Pakistan Muslim League (Quaid e Azam Group) (“PMLQ”) in 2005.  During 2010 to 2013, the applicant was an active member of PMLQ, attending party gathering at least once a month and voting for PMLQ.  After a general election in 2013, the applicant switched to support Pakistan Muslim League (Nawaz) (“PMLN”) and since then he had been threatened by members of PMLQ.  He feared that if he were to return to Pakistan, the members of PMLQ would harm or kill him.

The decisions of the Director and the Board

7.  By the Director’s First Decision and the Director’s Second Decision (collectively, “the Director’s Decisions”), 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]. The Director’s Second Decision assessed the BOR 2 risk^[4].

8.  The applicant appealed the Director’s Decisions to the Board.  After a hearing on 31 July 2017, the Board dismissed the appeal. The Board found that the applicant was not a credible witness and his evidence was contradictory and fabricated for the purpose of his claim.  The Board also found that the applicant suffered no injuries during the alleged threats from members of PMLQ and that the extent and nature of injuries, if any, failed to attain a minimum level of severity.  Further, there was no state acquiescence and state protection was available to the applicant (paragraphs 36-60 of the Board’s Decision).  Thus, the Board rejected the applicant’s case in its entirety and found that he had not established his claim for his non-refoulement protection claim under all applicable grounds.

The Deputy Judge’s Decision

9.  On 29 November 2017, the applicant filed his Form 86 for leave to apply for judicial review against both the Director’s Decisions and the Board’s Decision.  His grounds for review were succinctly summarized by the Deputy Judge at paragraph 9 of the Deputy Judge’s Decision:

“9 …

(1) that the Director had failed to place proper weight to the presence of state acquiescence to the applicant’s claim;

(2) that the Director had failed take into proper consideration of the fact that the applicant was tortured with full collusion of the police and the state enforcement agencies in the consideration of the applicant’s claim;

(3) that the Director failed to take proper consideration of COI to assess the effectiveness of police protection in the consideration of the applicant’s claim;

(4) that the Director failed to properly consider the corruption and incompetency of the government in Pakistan in the consideration of the applicant’s claim;

(5) that the Director failed to apply high standard of fairness in the consideration of the applicant’s claim and that his decision was Wednesbury unreasonable in the public law sense; and

(6) that the adjudicator failed to make sufficient inquiry into the applicant’s situation and failed to give sufficient chance for the applicant to provide relevant evidence in support of his claim.”

10.  The applicant was late by about 11 days in filing his Form 86.  Nonetheless, the Deputy Judge granted extension of time for his application.  After considering all the evidence, the Deputy Judge refused the applicant’s leave application.  He set out his reasons at paragraphs 11 ‑ 13 of the Deputy Judge’s Decision:

“11. I however find his grounds just broad and vague assertions full of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decision, or in what way did the adjudicator fail to take into account of relevant COI, or what is the relevancy of state acquiescence to his claim when it was not even his case that he was ever tortured by AZ or any supporters of PML-Q or by the police, or in what way was the Director’s decision Wednesbury unreasonable, or how the adjudicator failed to give him sufficient chance to provide evidence to prove his claim. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any basis or merits in any of them.

12. 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.

13.       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.”

The Deputy Judge’s decision on extension of time

11.  On 10 September 2018, the applicant took out a summons seeking leave to appeal against the Deputy Judge’s Decision out of time. The application was heard by the Deputy Judge on 10 October 2018.  By the decision handed down on 30 October 2018 [2018] HKCFI 2392, the Deputy Judge refused the application.

12.  The Deputy Judge accepted the applicant’s explanation for delay given the fact that a delay of 3 days was not substantial.  Yet, he refused to extend time on the ground that the intended appeal has no prospect of success.  He set out his reasons at paragraphs 4 ‑ 8 of the decision dated 30 October 2018:

“4.   I now turn to assess the prospects of his intended appeal against the decision, which is a crucial consideration in an application to extend time: see Islam Raja Rais v Director of Immigration (unreported) HCMP 881/2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Akbar Md Faishal [2018] HKCA 566.

5.   In his supporting affirmation of the same date the applicant repeated his claim of having faced all sorts of dangerous problems and harassment and torture in Pakistan that he had to flee abroad to save his life, and that he believes that the Director and the Board had reached the wrong decision in assessing his USM claim by rejecting his claim without any proper inquiry or careful understanding of his situation, and suggested that the Immigration officer and the adjudicator to take a tour of his home country to inquire about the real danger that he would face if he were to return there, none of which however bear any relevance to the reasons given in my decision to refuse leave for him to apply for judicial review and against which he now seeks to appeal.

6.   Furthermore, in paragraph 5 of his affirmation the applicant stated:

‘3. … I have since taken legal advice and, I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for the leave for judicial Review. Obviously, this was my own oversight brought on by the fact that I was acting in person at this stage of proceedings. Additionally, I was informed that the Director and the Adjudicator did not see the grounds to reverse their decision. I would prefer to submit the order from the High Court along with the affirmation and Summons as Exhibit ‘A’.

4. I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal put of me.

5. Similar to this there is many more unacceptable and unexplainable grounds, which are shown to refuse my Appeal/petition.’

7.   It is indeed not easy to see what the applicant was trying to say, but the truth is that there is simply no further ground put forward by him in those paragraphs or in the affirmation, a fact which he did concede at his oral hearing when he was asked for clarification, and that Exhibit ‘A’ is nothing more than just a copy of my decision and order refusing him leave.

8.   In the premises and as I am unable to see any reasonably arguable grounds advanced by the applicant or any prospect of success in his intended appeal, it would be futile to extend the time for appealing. Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.”

Discussion

13.  We agree with the Deputy Judge that a delay of 3 days was not substantial.  Hence, 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; Gurung Min Bahadur [2018] HKCA 226.  The crucial consideration is whether the applicant can show that there is a reasonable prospect of success in the intended appeal. 

14.  We now turn to the merits of the intended appeal.

15.  In the Summons, the applicant merely stated that he sought to apply for leave to appeal against the Deputy Judge’s Decision.  He referred to his supporting affirmation filed on the same date for grounds of appeal.  In his supporting affirmation, he attached the Deputy Judge’s decision for extension of time as Exhibit “A” and provided the following grounds of appeal:

(1)   The Deputy Judge was wrong in law in holding that there was no state acquiescence or involvement;

(2)   The Deputy Judge failed to give detailed reason in support of his decision.

16.  We do not find these grounds arguable.

17.  First, an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  The primary decision maker to consider whether there was state acquiescence or involvement is the Director and the Board.  The court would and should not usurp the role of the Director or the Board and will only intervene if public law grounds for doing so are established.  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.

18.  Second, an appeal against refusal of leave for judicial review is not an occasion for the applicants to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Deputy Judge if it could be demonstrated that there were errors in law, that the Deputy Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

19.  Insofar as the 1^st ground of appeal is concerned, in both the Director’s First Decision and the Board’s Decision, state acquiescence or involvement was fully considered by the Director and the Board.  The Director and the Board found on the facts that there was no state acquiescence or involvement and state protection was available to the applicant (paragraph 27 of the Director’s First Decision and paragraphs 40 ‑ 49 of the Board’s Decision).  They concluded that there was no scope for finding risk of torture based on the concept of state acquiescence or involvement.

20.  The Deputy Judge in his decision had carefully examined the Board’s and the Director’s Decisions and concluded that their decisions did not commit any public law errors, in that: their decisions did not make any errors of law, were not tainted with any procedural unfairness, and were not Wednesbury unreasonable; and the Director and the Board had also achieved the high standards of fairness required for assessing applicant’s non-refoulement claim.

21.  Other than making a general and vague complaint that the Deputy Judge was wrong, the applicant has not in this appeal identified specifically what are the errors committed by the Deputy Judge in his reasons.

22.  This is therefore not a valid basis which can show that the Deputy Judge was wrong in any respect in his reasons for refusing the applicant’s application for leave to apply for judicial review.

23.  There are no merits in this ground of appeal.

24.  As to the 2^nd ground of appeal, it is clear from the Deputy Judge’s Decision that he has provided detailed reasons for his conclusion (paragraphs 11 ‑ 13 of the Deputy Judge’s Decision).  This ground of appeal is also entirely unmeritorious.

25.  Therefore, we agree with the Deputy Judge that the intended judicial review was unmeritorious and had no real prospect of success.  We take the view that the Deputy Judge was plainly right in refusing to grant extension of time to the applicant.

26.  In any event, we do not see any error of law or procedures in the proceedings before the Board and the Deputy Judge.  We agree with the Deputy Judge that leave to apply for judicial review should not be granted for reasons set out in the Deputy Judge’s Decision.

27.  In the premises, we are of the view that the application is totally devoid of merits and the intended appeal is doomed to fail.  Nor is there any other reason in the interest of justice why the appeal should be heard.  The Summons is dismissed accordingly.

28.  We further make an order pursuant to Order 59 rule 2A(8) of the Rules of the High Court, that no party may request this determination be reconsidered at an oral hearing inter partes.