RE IQBAL NASIR

CACV 183/2018

[2018] HKCA 495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 183 OF 2018

(ON APPEAL FROM HCAL 531/2017)

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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 14 May 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Pakistan. On 31 October 2009, he entered Hong Kong illegally and was arrested immediately. On 4 November 2009 he lodged a torture claim which later became a non-refoulement protection claim.

2.  The basis of the applicant’s claim was that if he returned to Pakistan he would be harmed or even killed by several men from the Pakistan Muslim League Nawaz Party (“PMLN”) because the applicant’s father had filed a police report of his brother’s murder against them.  The applicant’s case in gist is that in about August 2009, his brother was killed by two men who were members of PMLN.  Within one week of his father’s report to the police, the two assailants telephoned his father demanding him to withdraw the report or his sons would all be killed.  After his father made report to the police of the threat, he received more threats from the two men. Fearing for his personal safety, the applicant left Pakistan and eventually came to Hong Kong via mainland China.  In 2014, the applicant learnt that the one of the assailants was arrested and put in custody.

3.  The Director decided against the claims on 10 September 2015.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”).  By a Further Decision of 9 December 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

4.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 6 April 2017, the Board dismissed the appeals on all applicable grounds on 21 August 2017 (“Board Decision”).

5.  The intended judicial review was in respect of the Board Decision only.  The Form 86 filed by the applicant on 21 August 2018 did not contain any ground for judicial review.

6.  In his affirmation dated 4 January 2018 (which contained 5 pages of additional information marked “IN”), the applicant gave the grounds for judicial review below.

(1) The applicant never received the letter from the Director requesting information on BOR 2 risk.

(2) The Board failed to carry out sufficient research and proper inquiry into the COI conditions, was selective in its approach to COI information and had ignored information showing corruption and injustice in Pakistan.  The Board did not give reason for preferring COI information against the applicant’s case to that which supported the applicant’s case

(3) The Board erred in assessing the level of risk of harm to be low.

(4) The Board failed to consider the concept of extended state acquiescence.

(5) The Board erred in Speculating that the applicant was never hurt or personally threatened by the people whom the applicant feared.

(6) The Board was biased.

(7) The Board failed to make a finding of fact as to whether there exists in Pakistan a “consistent pattern of gross, flagrant or consequence”.  The Board therefore arrived at an unreasonable decision.

(8) The Board erred in not accepting that the applicant faced genuine and substantial risk of being subject to ill treatment.

7.  In the hearing on 4 January 2018 before the judge, he submitted a handwritten letter (“Letter”).  Part of the Letter reads “I wanna inform your department I try to best sort out my matter in my origin country in Pakistan my family in Pakistan they are doing dealing with my en-party and they are compromise with them that’s why I need to extend to stay in Hong Kong”.  The applicant claimed that he needed 3 to 4 months to resolve his issues and return home.

8.  The judge told the applicant that the Letter did not constitute a ground for seeking leave.  The judge then asked the applicant if he made the JR leave application to buy time to which he replied in the affirmative.

9.  At [9] to [14] of the CALL-1 Form of 14 May 2018, the judge gave the following reasons for refusing leave to apply for judicial review:

“9. The supporting affirmation lists several convoluted grounds for seeking leave including procedural impropriety, error/misdirection in law and irrationality. The applicant also submits he never received a letter from the Immigration Department inviting him to submit any additional information to support a BOR 2 risk claim and his failure to submit further information was prejudiced. There was no mention of this to the adjudicator in his appeal notice nor during the hearing; there is no record of it in the decision.

10. I do not need to go into the grounds of the applicant’s affirmation. I will refer to the letter submitted by the applicant on the day of the oral hearing. He requests the court to extend his time in Hong Kong because his family in Pakistan are dealing with his enemies and trying to reach a compromise. Once his problem is resolved he will return home. In open court the applicant confirmed that he needed another three to four months to resolve his issue before he can return home.

11. Having read this letter, I told the applicant that it did not constitute a ground for seeking leave. I then asked the applicant if he only made this application for leave to apply for judicial review to extend his time in Hong Kong/to buy time and he replied in the affirmative. He had no other submissions to make.

12. This admission from the applicant that he was making this application to buy time shows an abuse of the process. It was a waste of judicial time and resources to deal with applications on this basis. The applicant had no grounds with any merits to seek leave; he only wanted to extend his stay in Hong Kong for whatever his own reasons.

13. On his own admission, the applicant is unable to rely on any grounds that showed any errors of law by the adjudicator. There was 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. The same applies to the decision of the Director.

14. The applicant’s claim is not remotely reasonably arguable. It was by his own admission an abuse of process and a waste of this court’s resources. I refuse leave to apply for judicial review.”

10.  In the notice of appeal of 24 May 2018 and the affirmation in support of the same date, the applicant said that his family is still trying to settle with the other party.  He did not provide any ground for appeal.

11.  The applicant agreed by a letter of 24 May 2018 that the appeal can be heard by two judges.

12.  In the skeleton submissions lodged on 31 July 2018, the applicant asked for an extension of time so that his family can sort out the problem in Pakistan.

13.  We have considered in detail the applicant’s case before the Board, the Board Decision and the Form 86 and the applicant’s affirmations filed in the Court below and in this appeal.  We would observe that if an applicant’s sole ground for applying for leave to bring judicial review is to prolong his stay in Hong Kong due to whatever reason, this is a misuse of the court process.  If, however, an applicant has advanced grounds for seeking relief while requesting to stay in Hong Kong for a longer period of time, the court should also consider the grounds for the intended judicial review in adjudicating on the leave application.

14.  In the present case, the applicant had set out a list of grounds for his intended judicial review in his supporting affirmation (see [6] above).  However, at the oral hearing in answer to the judge’s question, he confirmed he only made the application to extend his stay in Hong Kong and he had no other submission to make.  In the circumstances, it is understandable that the judge viewed the application as an abuse of process and did not consider it necessary to go into the grounds for the application.

15.  We would also point out that the grounds put forward by the applicant in support of his intended judicial review are, in any event, not reasonably arguable. Firstly, even accepting that he did not receive the Director’s letter inviting submission of information relevant to the BOR 2 risk assessment, the applicant has not identified what relevant information he would like, but had not been able, to put before the Director.  Secondly, the complaint about the Board’s understanding of and approach to COI information cannot stand in light of the references and discussions on this aspect in the Board Decision.  Thirdly, on the applicant’s account, he had not been attacked or personally threatened by the PMLN people.  The Board was not speculating when it said that the applicant was not injured or personally threatened.  Neither did the Board err in assessing the level of risk of harm to be low and in not accepting the applicant faced genuine and substantial risk of being subjected to ill treatment.  Fourthly, the concept of extended state acquiescence is not engaged on the facts of the applicant’s own case.  Fifthly, the applicant’s complaint that the Board was biased was not particularised.

16.  The applicant’s intended application for judicial review has no prospect of success.  The judge was correct to refuse leave.  We dismiss the appeal accordingly.