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HCAL 105/2018
[2019] HKCFI 2101
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 105 OF 2018
___________________
| Re: |
Aslam Mian Muhammad |
Applicant |
___________________
| Before: |
Deputy High Court Judge Josiah Lam in Chambers |
| Date of Hearing: |
28 September 2018 |
| Date of Decision: |
17 September 2019 |
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D E C I S I O N
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Application for leave to appeal
1. The Applicant seeks leave to appeal against my order dated 3 September 2018 in his application for leave for judicial review in HCAL 105/2018.
2. The Applicant is a national of Pakistan. He is now aged 49 (DOB: 16 September 1969).
3. The Applicant claimed he would be killed by Karamdad Wala (“KW”), Bashir Ahmed (“BA”) and Khadam Hussain Dhilu (“KHD”). Those men forced him to join the Pakistan Muslim League (N) [“PML(N)”]. The Applicant refused because he had already joined the Pakistan People’s Party (“PPP”) since 2008 and was an active member. He had gained support from his villagers. The Applicant said PML(N) therefore targeted him in 2012.
4. The Applicant left Pakistan on 5 October 2012. He went to Malaysia first and then to Macau. He actually wanted to go to Canada. His travel agent finally gave him a fake British passport to enter Hong Kong on 21 October 2012 as visitor. In fact, the Applicant had been to Hong Kong several times before.
5. In October 1992, the Applicant used the name Mohammad Aslam (ID 1) to enter Hong Kong as visitor. He was permitted to stay until 14 January 1993. He overstayed and surrendered to the Immigration Department on 15 April 1993. He was repatriated to Pakistan on 24 May 1993.
6. A few months later, on 15 September 1993 the Applicant came to Hong Kong again using another name Muhammad Aslam (ID 2). His travel document was later found to have been unlawfully altered. He was arrested on 23 September 1993 and repatriated to Pakistan for the second time on 5 March 1994.
7. Almost two years later, on 28 February 1996 the Applicant was arrested by the police in Hong Kong again. He used the name Mohammad Aslam (ID 1). On 27 July 1996, he was repatriated to Pakistan for the third time.
8. Six years later, on 8 August 2002 the Applicant came to Hong Kong using another name Chaudhry Aslam Muhammad (ID 3). On 25 March 2003, he left Hong Kong for China.
9. The Applicant came to Hong Kong again on 21 October 2012. This time, he used the name Aslam Mian Muhammad (ID 4). He then travelled among Hong Kong, China and Macau. A year later, his visa expired. He left Hong Kong for Korea on 17 October 2013 but was repatriated to Hong Kong on the next day. The Applicant was refused entry by an immigration officer but he raised a torture claim on 24 October 2013. He withdrew the torture claim later and raised a CIDTP claim on 28 October 2013.
10. On 7 December 2015, the Director of Immigration (“the Director”) rejected the Applicant’s claim with respect to these three applicable grounds: (i) risk of torture[1], (ii) risk of persecution[2] and (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3].
11. On 1 November 2016, the Director rejected the Applicant’s claim with respect to the last applicable ground: risk of violation of the right to life (BOR2 risk)[4].
12. The Applicant appealed to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”). The Adjudicator heard him on 20 January 2017 and rejected his appeal on 17 February 2017 with respect to all the four applicable grounds.
13. On 22 January 2018, the Applicant applied for leave for judicial review. The Applicant named the Board as respondent and the Director as interested party. That application was heard by me as HCAL 105/2018 on 20 June 2018.
14. Excluding the three-month limitation period for filing his application for leave for judicial review, the Applicant was 8 months late when he applied for leave for judicial review on 22 January 2018. I did not allow his late application as he failed to justify the substantial delay. In reaching that decision, I had considered there were no merits in the Applicant’s grounds of judicial review.[5]
15. The decision was made on 3 September 2018 and sent to the Applicant. The Applicant tried to appeal on 17 September 2018. That was the 14th day after 3 September 2018. He was told by the Registry that he had to seek leave to appeal as the said order was an interlocutory one because I did not grant him extension of time to apply for leave for judicial review. The Applicant then took out a summons on that day to seek leave to appeal.
Grounds of intended appeal
16. The Applicant had not produced any draft notice of appeal. There were no appeal grounds stated in his affirmation dated 17 September 2018. The Applicant merely wrote down ‘I would like to inform court decision maker unfairly made decision my claims’. He attached a copy of my decision dated 3 September 2018 but failed to point out what the complained unfairness was.
Hearing
17. The hearing took place on 28 September 2018. The Applicant was in person. An Urdu interpreter provided service in court.
18. The Applicant was asked to state his grounds of appeal to show a reasonable prospect of success of his intended appeal. I stood the matter down for him to organize himself. The Applicant was told he could ask the interpreter to write down the grounds of appeal for him.
19. When the hearing was resumed, the Applicant had merely asked the interpreter to write down for him to the effect that his life was in danger in Pakistan and he should be allowed to live in Hong Kong. The Applicant confirmed he had no other things to say for his application for leave to appeal.
Discussion
20. It is said in Nupur Mst v Director of Immigration [2018] HKCA 524 that in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant and the prospect of an appeal is assessed by reference to his intended grounds of appeal. The Court of Appeal would not examine the decision of the Board afresh as if it is a fresh application for judicial review.
21. It is also stated in Re Islam Rafiqul that “In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.”[6]
22. The Applicant failed to state any viable ground of his intended appeal for the Court of Appeal to consider that my order dated 3 September 2018 should be reversed. He could provide no grounds at all. He failed to show a reasonable prospect of success of his intended appeal which must be a crucial assessment in an application for leave to appeal.
Conclusion
23. I refuse to grant the Applicant leave to appeal because he fails to show he has any viable ground to argue and thus fails to show any reasonable prospect of success of his intended appeal. The summons dated 17 September 2018 is therefore dismissed.
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(Josiah Lam) |
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Deputy High Court Judge |
The Applicant appeared in person.
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] Para 42 of my decision dated 3 September 2018.
[6] [2018] HKCA 570, para 14(2).
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