RE ASJAD BAIG

CACV 578/2020

[2021] HKCA 1962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 578 OF 2020

(ON APPEAL FROM HCAL 494/2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is an application for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 4 June 2021 ([2021] HKCA 789) (“Judgment”), dismissing the applicant’s appeal from a decision dated 23 July 2020 ([2020] HKCFI 1637) by Deputy High Court Judge Bruno Chan (“Judge”), refusing him leave to apply for judicial review of the decision dated 13 March 2018 of the Torture Claims Appeal Board (“Board”) concerning his non-refoulement claim (“NRF Claim”).

2.  The notice of motion, filed on 23 July 2021, was out of time.

Paper disposal appropriate

3.  Pursuant to the direction of the Registrar of Civil Appeals (“Registrar”), unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing.  We agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

4.  Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

5.  In support of the application, the applicant contended in the notice of motion that:

(1)  He did not know that his failure to lodge skeleton argument would cost him the oral hearing.

(2)  Judges were procedurally unfair because he mentioned that he did not have any knowledge of the judicial review system in Hong Kong.

(3)  The NRF Claim was genuine and not based on a story.  The Director of Immigration and the Board decided on his claim “on the basis of other applicant”.

(4)  The actual situation in Pakistan was much worse than that portrayed in the country of origin information (COI).  The judges were unfair to find that state protection and relocation options would be available based on the COI.

6.  The applicant also filed a supporting affirmation in which he explained that his delay in taking out the notice of motion was due to his lack of knowledge about the time limit for issuing the same.

7.  On 6 August 2021, the applicant lodged written submission by which he again[1] referred to ST v Director of Immigration (sic)[2] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531, R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514, Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex parte Smith[3]for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim; and (4) that the court may interfere with the exercise of an administrative discretion that is beyond the range of responses open to a reasonable decision-maker.

8.  In addition, the applicant also quoted part of s 37ZT of the Immigration Ordinance (Cap 115) (“s 37ZT”), which concerns delay in appealing against the rejection of a non-refoulement claim to the Board.

9.  Lastly, he mentioned the presence in his village of smugglers who were terrorists; his inability to support himself in other parts of Pakistan; and his wife and child in Hong Kong whom he could not leave behind.

Discussion

Retrospective extension of time

10.  The applicant’s reference to s 37ZT is misconceived.  As said, that provision deals with delay in appealing to the Board, not application for leave to appeal to the CFA out of time.

11.  In any case, in view of the length of the delay and the applicant’s explanation in the supporting affirmation, we are prepared to give the applicant retrospective leave to file the notice of motion out of time.

No case for leave to appeal to CFA

12.  The applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise. 

13.  Nor do we see any scope to grant leave under the “or otherwise” limb.  

14.  Neither the notice of motion nor the written submission really engaged the reasons we gave in the Judgment. 

15.  The assertions made by the applicant for this application are in any event unmeritorious. 

16.  With regard to the notice of motion:

(1)  The first point cannot stand.  The applicant had been warned by paragraph 4 of the Registrar’s letter dated 17 March 2021 that he would be deemed to waive his right to an oral hearing if he failed to lodge skeleton argument.

(2)  The second and third points are too vague and lacking in particulars to warrant any or any serious consideration.  The third point is particularly groundless.  As stated in [3] of the Judgment, the Director of Immigration and the Board have in their respective decisions set out in detail the particular circumstances relied on by the applicant as giving rise to the alleged fear underlying the NRF Claim.

(3)  The allegation in the fourth point is plainly false.  Neither the Judge nor this court has made any findings on state protection or internal relocation.  It is not within our purview to do so.  In processing a claim for non-refoulement protection, the Director and the Board alone assess the evidence including COI and find facts including the availability of state protection and viability of internal relocation.

17.  As for the written submission:

(1)  The applicant did not suggest whether and, if so, how the principles laid down in the authorities cited have not been met in the processing of his claim.

(2)  The mention of smugglers/terrorists appears out of nowhere.  As summarised in [2] and [3] of the Judgment, the NRF Claim was premised upon a fear of harm over a land dispute and a shooting incident resulting from such dispute.  The applicant’s account of events underlying the NRF Claim did not involve any smugglers or terrorists.

(3)  His alleged inability to support himself in other parts of Pakistan is inconsistent with the Board’s finding that it would be reasonable for him to relocate to another part of Pakistan to avoid the people who might harm him.  See [10(5)] of the Judgment.  The applicant did not point to any error of law, procedural unfairness or irrationality on the part of the Board in so finding.

(4)  The fact that the applicant has formed a family in Hong Kong is irrelevant to any of the applicable grounds for non-refoulement protection.

18.  As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.