RE SHAH ZAFAR ALI

CAMP 89/2018

[2018] HKCA 867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 89 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 288/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  By an ex parte summons filed on 19 June 2018, the applicant applies for leave to appeal out of time against the decision of Deputy High Court Judge Woodcock (“the judge”) dated 8 November 2017 refusing him leave to apply for judicial review on the ground of delay.

2.  Procedurally, the applicant has taken a wrong approach. As we will discuss later, in order to proceed with the intended appeal, the applicant must first obtain leave to do so under section 14AA of the High Court Ordinance (Cap 4).  But the time for applying leave to appeal has already expired.  As such, we will take the exceptional course and treat the applicant’s summons as if it were an application for an extension of time to apply for leave to appeal against the judge’s decision.

3.  Having considered the application, we are of the view that it is appropriate to determine it on the papers without an oral hearing pursuant to Order 59, rule 2A(5)(a) of the Rules of the High Court (Cap 4A).

Background

4.  The applicant is a Pakistani national.  He came to Hong Kong illegally on 27 June 2012 and was arrested by the police that day.  He lodged a torture claim[1] on 30 June 2012, and the claim was rejected by the Director of Immigration (“the Director”) on 12 October 2012.  He did not appeal against the Director’s decision rejecting his torture claim, but instead, on 28 January 2014, he lodged another claim for non-refoulement under the grounds of the BOR 3 risk[2] and the persecution risk[3].

5.  His non-refoulement claim was based on the fear that, if he returned to Pakistan, he would be harmed or killed by an illegal moneylender because he was not able to repay a debt of 0.3 million rupees that he owed him.  The relevant background and facts were set out by the judge at paragraphs 6 to 8 of the CALL-1 Form.

6.  By a Notice of Decision dated 20 November 2015, the Director decided against the applicant’s claim based on the BOR 3 risk and the persecution risk.   The Director further assessed the applicant’s claim on the basis of the BOR 2 risk[4], and, by a Notice of Further Decision dated 19 January 2017, determined the risk against him.

7.  The applicant appealed to an adjudicator of the Non-refoulement Claims Petition Office against the Director’s decisions.  An oral hearing was held on 9 September 2016 and the applicant elected not to testify.  Although strictly speaking the Director’s decisions did not cover the torture risk, the adjudicator nevertheless assessed such risk in his decision.  The adjudicator took the view that the case was about a private debt and had nothing to do with the Pakistani government.  The applicant’s perceived fear of harm was not instigated by any state agent or under the colour of state authority.  The injuries suffered by the applicant also did not attain the minimum level of severity.  Furthermore, after considering the relevant Country of Origin information (“COI”), the adjudicator took the view that internal relocation was a viable option for the applicant.  In addition, the adjudicator found that the applicant was not credible as he failed to lodge a non-refoulement claim as soon as he arrived in mainland China.  The adjudicator dismissed the appeal on 10 March 2017.

The judge’s decision

8.  The applicant applied to the court for leave to bring a judicial review on 13 June 2017.  According to the Form 86, the intended application for judicial review was against the decision of the adjudicator.  While no ground for seeking reliefs was contained in the Form 86, the applicant set out the following grounds in his affirmation in support of the application dated 13 June 2017:

(1)  The adjudicator failed to carry out sufficient research and inquiry into COI and failed to have regard to relevant and up-to-date COI research;

(2)  The adjudicator cherry-picked COI information and relied on outdated COI;

(3)  The adjudicator failed to evaluate and make a finding as to whether Pakistan shows a consistent pattern of violation of human rights;

(4)  The adjudicator failed to analyse Pakistani state protection.  The adjudicator misdirected himself on the law regarding the extended meaning of state protection;

(5)  The adjudicator took into account incorrect facts and failed to give weight to facts favorable to the applicant;

(6)  The adjudicator failed to call for psychological and psychiatric evaluation when the claim was before the Director and the Board;

(7)  The adjudicator applied an incorrect standard of proof; and

(8)  The duty lawyer failed at the first instance to provide sufficient legal representation. 

9.  It was further contended in the supporting affirmation that:

(1)  The adjudicator failed to take into account relevant COI materials;

(2)  The bundle for the hearing before the adjudicator was only delivered to the applicant few days before the hearing, and the documents contained therein were in English, rendering the applicant insufficient time to prepare for, and unable to understand, the proceedings;

(3)  The adjudicator refused to inform the applicant of the outcome of his decision by phone, and the applicant only received the decision on 9 June 2017;

(4)  The adjudicator relied on COI materials that were not officially recognized, outdated, and simply hearsay;

(5)  It was unfair for the adjudicator to determine the applicant’s BOR 2 risk, without having it screened or judged by the Director; and

(6)  The adjudicator only delivered his decision 9 months after the oral hearing, and the lapse of time rendered the decision unreliable.

10.  An oral hearing was scheduled to be held on 25 August 2017, but the applicant failed to attend the hearing.  The judge decided to proceed with the consideration of the application as presented before her on the papers.

11.  The application was made outside the statutory time limit, and having considered the relevant legal principles, the judge held:

“ 5. The delay is not significant but there is no known good reason for extending time. This is because the merits of the substantive application after perusal of the papers are weak. Moreover, the application does not raise any questions of general public importance. The extension of time sought is an abuse of process and ought to be refused. Delay alone, even if only by a short period of time is enough to dispose of this application. However, if I am wrong, I proceed to consider the merits.”

12.  As regards the merits of the application, the judge concluded that there was no reasonably arguable ground in the intended application for judicial review.  After considering the background of the case, the decisions of the Director and the adjudicator, the judge set out the reasons for her conclusion in paragraphs 17 to 24 of the CALL-1 Form:

“ 17. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully and with caution. The applicant’s complaints in the affirmation against him and the procedure undertaken are not made out. This finding also applies to the hearing before the Director.

18. It is submitted the adjudicator failed to consider relevant and up-to-date COI information, cherry picked information or failed to properly enquire at all. He is accused of putting weight on irrelevant considerations or considerations that were incorrect, inaccurate or not based on fact. These accusations are not backed with particulars or examples; they are bare assertions. However, in his decision the adjudicator made proper reference to material he relied on and referred to in the hearing bundle. He stated the source and its relevance. I find it more than sufficient; these grounds are not arguable.

19. It is submitted the adjudicator failed to evaluate to make a finding of fact as to whether there exist in Pakistan a consistent pattern of gross, flagrant or mass violation of human rights. The adjudicator found the basis of the applicant’s fear arose from a personal dispute; he failed to repay the debt. There was no evidence that the State was involved in his problems. In this case the adjudicator did not need to consider the pattern of violation of human rights in Pakistan.

20. I found no substance in the grounds of this application. What was in the supporting affirmation does not cover all the grounds set out nor are they substantiated. For example, the adjudicator applied the incorrect standard of proof without any particulars to support this ground. It was a bare assertion. There are other similar allegations not supported or substantiated in the grounds for example, the assigned duty lawyer failed the applicant in the hearing before the Director but there is no mention or complaint made to the adjudicator in the appeal hearing recorded in the decision. There were no particulars again. There was a failure to call for psychological and psychiatric evaluations yet there was no evidence or suggestion the applicant was mentally injured and therefore no basis for such evaluations.

21. Much was made in the affirmation of procedural impropriety, unfairness and it is submitted the applicant was confused during the appeal hearing and the process was unfair, however, an interpreter was arranged to assist him. There were no complaints in the record he was ill-prepared, confused nor had had time to read or understand the bundle. He then elected not to give evidence in the appeal hearing. Yet, in the affirmation he claims he gave answers to questions honestly and feels aggrieved his credibility was found questionable which is very misleading when he clearly elected to remain silent.

22. It is suggested there is a procedural impropriety where the TCAB considers the BOR 2 risk without it first being screened or judged by the Director. This is also misleading when the Director’s decision dismissing the BOR 2 risk was dated 19 January 2017 several months before the determination of the adjudicator. In fact, in that 19 January decision, the Director specifically informs the applicant he need not file a separate and further petition to the adjudicator of the TCAB as his initial appeal/petition was still pending determination the adjudicator would automatically determine his appeal/petition on all applicable grounds in one go and include the BOR 2 risk. Therefore, there was no substance in this ground.

23. I do not find any ground that shows there was an 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 judgment, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

Application for appeal out of time

13.  According to court file, the CALL-1 Form and the sealed order were sent to the applicant by post at the address stated in the Form 86 on 8 November 2017.

14.  By a letter dated 13 May 2018 written in English, the applicant informed the court that he had been arrested by police and kept in Stanley Prison for 10 months. Upon release from prison on 21 April 2018, he was transferred to the Immigration Centre.  He thereupon made enquiries about the progress of his application for leave to apply for judicial review. 

15.  He did not give particulars as to the reason for his arrest and detention in prison for 10 months.  Nor did he explain why he could not write to the court earlier to notify it of his detention.  He had been able to write to the court during his detention at the Immigration Centre.  Likewise, there are facilities in the Stanley Prison to allow inmates to write to the court concerning their pending proceedings.

16.  In response, the court sent copies of CALL-1 Form and the sealed order to the applicant at the Immigration Centre on 17 May 2018.

17.  On 19 June 2018, the Appeals Registry received an ex parte summons and an affirmation in support from the applicant. Pursuant to the summons, he applies for leave to appeal out of time against the “order dated 30^th April 2018 (sic) … on the grounds set out in the draft Notice of Appeal” and for leave to advance “a new sole ground of appeal”.  We are not aware of any order of the court that was dated 30 April 2018. Nor is there any draft Notice of Appeal attached to the summons or exhibited to the affirmation in support.

18.  The applicant in his affirmation in support deposed as follows:

(1)  The order was served upon him late because he was imprisoned when the order was made and, as a litigant in person, he was not aware of the time limit for appealing;

(2)  He was advised that there was a good ground of appeal which was not considered at the first instance stage; and

(3)  He was previously advised by his friend in the previous proceedings and had no money to engage a private lawyer for professional advice.

19.  Notwithstanding directions from the court and the requirement in Practice Direction 4.1, the applicant failed to lodge any written submissions in support of his application.

Discussion

20.  In Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, it was held that in judicial review cases brought outside the three-month time limit where the judge refused to extend time, an applicant should obtain leave under section 14AA of the High Court Ordinance (Cap 4) before an appeal can be brought.

21.  According to Order 59, rule 2B of the Rules of the High Court, an application for leave to appeal must be made within 14 days from the date of the judgment or order.  In the present case, the time for applying for leave to appeal therefore expired on 22 November 2017. 

22.  As the applicant had not made any application to the court until June 2018, there is serious delay in the matter.

23.  Apparently, the reason why the applicant did not receive the judge’s decision earlier was that he failed to inform the court of his detention at the Immigration Centre.  He had offered no explanation for not doing so despite the facilities for writing to the court in Stanley Prison as well as in the Immigration Centre.

24.  It is the duty of a litigant, including a litigant acting in person, to inform the court of his change of correspondence address and to ensure prompt receipt of information by post.  The consequence occasioned by the ineffectiveness of an old address would fall on the shoulders of the litigant/claimant.  See Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; Re Saqlain Muhammad [2018] HKCA 346; Re Karamjit Singh [2018] HKCA 460; and Re Ashwani Kumar, supra. 

25.  As held in Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125, where the delay was both inordinate and inexcusable, the applicant is required to demonstrate that the intended appeal has real prospect of success, before leave of appeal is to be granted.

26.  We therefore turn to the merits of the intended appeal.

27.  First of all, we note that, although it was deposed in his affirmation that he was advised that there was a good ground of appeal, no ground was ever articulated in this application.  Nothing contained in the applicant’s supporting affirmation constitutes a valid ground of appeal.

28.  In a letter of 6 July 2018, written in Urdu (translation of which was obtained by court from Court Interpretation services), the applicant simply reiterated his predicament due to his incarceration and lack of legal representation. He asked for time to consult lawyers after his release.

29.  In his subsequent letter of 2 August 2018 after his release, he only informed the court of his latest address without further representations on the merits of his case.

30.  We agree with the judge that the grounds set out in the affirmation in support of his application for leave to apply for judicial review were plainly unarguable.  As the judge pointed out, most of the allegations lacked particularity or specificity.  Others, were either factually wrong (such as, he testified honestly at the oral hearing) or irrelevant (such as, the alleged failure of the adjudicator to consider the extended concept of state acquiescence).  The judge made no error in rejecting them.

31.  Technically, it may be arguable that, in the absence of appeal, the adjudicator would not have jurisdiction to assess the applicant’s torture risk.  However, this argument would not assist the applicant, because even assuming this analysis is correct, the net effect remains that his torture claim was rejected pursuant to the Director’s decision. See Re Monjur Hossain [2018] HKCA 476.  Any attempt to bring a judicial review against the Director’s decision rejecting his torture claim would be hopelessly out of time.

32.  Ultimately, the crucial issue is the evaluation of risk of harm in light of all the evidence before the adjudicator.  Having evaluated evidence before him, the adjudicator found that the injuries suffered by the applicant did not attain the minimum level of severity.  Based on this finding, there is no substantial ground for believing that the applicant would face a real risk of being subjected to ill-treatments meeting the high threshold required by law.  See Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at paragraphs 172 to 174.

33.  Having considered materials before us, we do not see any error of law or procedure in the proceedings before the adjudicator 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.

34.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We would not grant an extension of time for leave to bring an unmeritorious appeal. 

35.  For these reasons, we dismiss the ex parte summons filed on 19 June 2018.

36.  We are of the view that the application is totally devoid of merit. Pursuant to Order 59 rule 2A(8) of the Rules of the High Court, we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.