RE ALI MALIK USMAN

CAMP 193/2019

[2020] HKCA 73

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 193 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 653 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s renewed application for leave to appeal out of time against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 18 March 2019 refusing him leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by Deputy High Court Judge Lung on 1 August 2019.

2.  The applicant had filed an affirmation, and also lodged a written submission in support of his application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons, the affirmation and the written submission filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 22 March 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 16 September 2015 and 7 June 2017 rejecting his non-refoulement claim.

5.  The applicant is a Pakistani national.  He entered Hong Kong illegally, and was arrested by the police on 6 October 2010. On 8 October 2010, he lodged a torture claim which was rejected on 10 February 2013.

6.  On 17 April 2014, he made a non-refoulement claim based on his fear of being harmed or killed by his cousin, Arif, who was with the Pakistan Muslim League (N), arising out of a land dispute.  The applicant’s claim was detailed in the Director’s first decision at [8], and summarised by the Judge in [2] to [11] of the Form CALL-1 dated 18 March 2019[1].  The applicant’s case, in gist, is that in July 2010, Arif asked to buy a piece of land that the applicant and his siblings inherited had inherited from their father.  As the offered price was too low, the applicant’s family refused to sell, whereupon Arif threatened the applicant and the two had a fight.  Later a gang of five or six men attacked the applicant and his brother and fired gun shots at them, wounding the applicant’s brother in the leg.  The applicant managed to escape unharmed. As Arif continued to make threats, the applicant fled Pakistan and went to mainland China from where he came to Hong Kong.  The applicant said that after he had left home, Arif continued to look for him and there was a further incident of shooting that targeted his family’s house.   

7.  By his two decisions, the Director rejected the applicant’s claim.  The first decision covers the BOR 3 risk[2] and persecution risk[3] grounds, and the second decision covers the BOR 2 risk[4] ground.

8.  The applicant’s appeal to the Board was dismissed without a hearing on 22 March 2018.  Principally, the Board did not believe Arif had intention to kill the applicant, noting that other than the leg injury sustained by the applicant’s brother, no one was else injured despite there had been two incidents of shooting.  The Board also did not accept that Arif was connected to the police and there was any state involvement in the dispute between Arif and the applicant’s family.

9.  On 17 April 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  He set out the following grounds in the affirmation:

(1)     The Board unlawfully fettered its discretion, acted in a procedurally unfair manner and rendered unreasonable or irrational decisions.

(2)     The Board failed to meet the greater care and duty owed to a self-represented litigant.

(3)     There was a lack of legal assistance and there was no legal representation after the Director’s decision.

(4)     There was a lack of language assistance and he had language problem.

(5)     The applicant did not receive the Director’s letter inviting him to submit further documents and additional facts for his BOR 2 risk assessment. 

(6)     The Director did not provide further interview for his claim on BOR 2 risk.

(7)     The Board failed to conduct oral hearing for his appeal of the Director’s decision.

10.  The Judge heard the application on 17 August 2018.  By his decision given on 18 March 2019, he refused the application, being of the view that the intended judicial review was not reasonably arguable, and had no realistic prospect of success.  He set out his reasons at [38] to [48] of the Form CALL-1 as follows:

“38. The Applicant complained there was no legal representation after the Director's decision. He had been represented by the Duty Lawyer Service up to the Director's decision dated 16 September 2015.

39. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

40. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while he was represented by the Duty Lawyer Service and in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

41. The Applicant complained he did not receive the Director’s letter inviting him to submit additional facts. In court, he admitted that at the material time he lived in Tuen Mun but he had not reported that address to the Director. The Applicant could blame no one if he really failed to receive letters or notices from the Director then.

42. The Applicant complained the Director gave him no further interview. He also complained the Adjudicator did not give him a hearing for his appeal.

43. In court, the Applicant admitted he had submitted all of his case to the Director. Thus, all was before the Director and later before the Adjudicator for their consideration. The Applicant admitted he would have no more to submit to the Director. He also said if there was a Board hearing, he would simply tell the Adjudicator to give him time to stay here until his problems were settled in Pakistan. The Applicant failed to show any further interview/hearing by the Director or the Adjudicator could advance his case.

44. In ST v Betty Kwan & Another, the Court of Appeal says: –

“…it does not follow from the requirement of an opportunity to make worthwhile or effective representations that there must be an oral hearing held before a decision is made. Put another way, there is no absolute right to an oral hearing. Among other things, the question of whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issues involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.”

45. The same court further states: –

“The judge then, importantly, pointed out the question of whether an oral hearing should be held is not to be decided by whether there are factual disputes, but whether an oral hearing “may well contribute to achieving a just decision”

46.  There was no absolute right to an oral hearing. The Applicant failed to show he had any ‘worthwhile and effective representations’ to make before the Director or the Adjudicator. In such circumstance, the Director and the Adjudicator need not hold further hearing.

47.  The Adjudicator considered all of the Applicant's case as the latter could present. The Applicant was not prejudiced even though the Adjudicator did not hold any Board hearing.

48.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case before the Director, which was fully before the Adjudicator too. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

11.  The 14-day period for the applicant to appeal the decision of the Judge, as stipulated in Order 53, rule 3(4) of the Rules of the High Court,expired on 1 April 2019.  On 2 April 2019, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  Deputy High Court Judge Lung heard the application on 4 July 2019, and by his decision handed down on 1 August 2019[5] dismissed the application.  On 13 August 2019, the applicant filed the present summons and an affirmation in this Court to renew his application for leave to appeal out of time.

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 delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

13.  The applicant was late by one day, which is a minor delay.  Before Deputy High Court Judge Lung, the applicant explained that he did not receive the Form CALL-1.  Like the Judge, we are prepared to excuse the delay considering it was a minor one.  What is more important, however, is the prospect of the applicant’s intended appeal.  

14.  In the present application, the applicant did not provide any proposed grounds of appeal.  In both the summons and the affirmation, he only stated that he could not return to his home country as his life would be in danger.  

15.  In his written submission, the applicant gave an account of his case.  He stated that his family continued to receive death threats from Arif and his men, and asked for a reconsideration of his case.    

16.  We are of the view that the matters stated in the summons, affirmation and the written submission do not amount to viable grounds of appeal against the Judge’s decision.  In an appeal to this Court, the focus is on the decision and reasons of the judge in the court below.  The applicant, however, has not pointed to any error in the Judge’s decision and reasons.  There is therefore no basis at all for this Court to interfere with the Judge’s decision.  Further, in light of the Board’s rejection of the applicant’s case, which was upheld by the Judge, the contention that he would face risks of harm if refouled cannot stand. 

17.  As the intended appeal has no prospect of success, it would be futile to give leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons.

18.  As the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.