RE MUHAMMAD ZEESHAN

CAMP 93/2018

[2018] HKCA 679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 93 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 503 OF 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  By summons filed on 25 June 2018, the applicant applies for leave to appeal out of time against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 7 June 2018 refusing him leave to apply for judicial review. The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 7 August 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 19 April 2016 and 24 March 2017 rejecting his non-refoulement claim.

2.  Under Order 59 rule 2A and 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.  We are of the view that it is appropriate to determine the present application on paper without an oral hearing, pursuant to Order 59 rule 2A(5)(a).

3.  The applicant is a Pakistani national.  He came to Hong Kong on 2 October 2001 and was permitted to remain as visitor.  He has overstayed since 17 January 2002.  He was arrested by the police on 28 April 2008.  On 8 May 2008, he lodged a torture claim^[1] which was assessed and rejected by the Director on 7 February 2013.  His appeal against the Director’s decision was dismissed by the Board on 20 March 2013. On 19 April 2013, he raised a claim for non-refoulement protection.

4.  The applicant’s claim is based on his fear that if he were to return to Pakistan, he would be harmed or killed by a man called Chaudhary Asghar and would be arrested by the police because they believed he had murdered Asghar’s nephew, Kashif. 

5.  The applicant’s case had been set out in details in the Director’s decision and the Board’s decision, and summarised by the Judge in [5] to [7] of Form CALL-1 dated 7 June 2018, [2018] HKCFI 1161.  We will not repeat them here.

6.  By Notice of Decision dated 19 April 2016, the Director rejected the applicant’s claim under the grounds of BOR 3 risk^[2] and persecution risk^[3].  The Director did not re-assess the claim under the torture risk since the applicant’s torture claim had already been rejected in 2013 (see [3] above).

7.  By letter of 28 February 2017, the Director invited the applicant to provide additional information relevant to his non-refoulement claim on the ground of BOR 2 risk^[4].  The applicant responded by an undated reply which reached the Director on 16 March 2017, in which he repeated information that he had previously provided to the Director, and also enclosed three sets of country of origin information (COI) about Pakistan.  By a Notice of Further Decision dated 24 March 2017, the Director rejected the applicant’s BOR 2 claim. 

8.  The applicant appealed to the Board against the Director’s decisions which was heard on 30 June 2017.  The applicant elected to give oral evidence at the hearing and adopted as evidence what he had said in the screening interviews with the officers of the Immigration Department as well as his Non-refoulement Claim Form.  By a decision dated 7 August 2017, the Board dismissed the applicant’s appeal. 

9.  The Board found the applicant’s non-refoulement claim incredible for the reasons that firstly, he did not raise the claim as soon as practicable after entering Hong Kong notwithstanding that he had ample opportunities to seek protection before the police arrested him 6 years after entering Hong Kong and no explanation was given for the delay; secondly, his claim that he would be wanted by Pakistani police was based on speculation and hearsay which was not corroborated by any evidence and in any event, the COI showed that there was a reasonable degree of state protection to ensure that the applicant would receive fair investigation and trial should he be arrested and prosecuted for having murdered Kashif; and thirdly, on his account of facts, he was a fugitive rather than a refugee who had fled his home country to avoid arrest and this did not entitle him to non-refoulement protection. Accordingly, the Board concluded that the applicant had failed to satisfy the legal requirements for establishing any of the BOR 3 risk, BOR 2 risk or persecution risk grounds.  

10.  On 9 August 2017, the applicant filed his Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the Board.  At the applicant’s request, an oral hearing was held on 16 January 2018 but he was absent.  The Judge proceeded to consider his application on the basis of the papers filed.  On 7 June 2018, the Judge refused to give leave to apply for judicial review for the reasons set out at [15] to [20] of the Form CALL-1 as follows:

“ 15. 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, claim and evidence. I find no substance in the grounds of this application and supporting affirmation. The applicant put forward three grounds and I find them all to be without merit.

16. In the first ground, the applicant suggests that the appeal bundle was served only days before the oral hearing and because it was in English, he could not afford to have it translated. This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings. The decision of the TCAB states that the applicant had his rights explained to him, adopted his previous evidence and non-refoulement claim form which were in the appeal bundle and elected to give evidence. There is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence and statements that was the appeal bundle. Moreover, his made this application and affirmation in English which casts more doubt on this ground. I find no merit in this ground.

17. In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. The adjudicator doubted his credibility because of his actions or rather inaction after he arrived in Hong Kong. He also found his evidence weak because of its almost entirely hearsay nature and bare assertions. It had less to do with his answers. There is no merit in this ground.

18. The third ground is a complaint that the adjudicator relied on country of origin information that was not officially recognised, hearsay and out-of-date. However, there are no particulars supplied by the applicant to support this ground. In fact, the adjudicator did not go into any such information because of his findings that the applicant was not credible nor a genuine claimant. I find no merit in this ground.

19. 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.

20. In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, para 14-17.  I refuse leave to apply for judicial review.”

11.  The 14-day period for the applicant to appeal against the Judge’s decision expired on 21 June 2018^[5].  On 25 June 2018, the applicant took out the present summons seeking 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 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 January 2016). 

13.  In the present case, the applicant was late by 4 days, which is not a serious delay.  The applicant explained in his affirmation filed on 25 June 2018 that he could not read and write English and was not aware of the time limit for lodging an appeal until a friend came to his assistance.  We are prepared to accept the explanation.

14.  We turn to assess the prospects of the intended appeal against the Judge’s decision, which is a crucial consideration in an application to extend time: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226. 

15.  The applicant has not given any grounds for his intended appeal in his summons and supporting affirmation.  In his written submission lodged on 11 July 2018, the applicant said he could not go back to his country because his life would be in danger.  He claimed that his party was weakening whereas his enemies were powerful and could locate him anywhere in Pakistan and there was nowhere he could hide.  He also said that law and order in Pakistan was in poor condition in that people were arbitrarily detained and tortured, the police were corrupt and independent judicial inquiries were extremely rare.

16.  None of the matters raised in the applicant’s written submission amounts to arguable grounds of appeal.  The applicant has not pointed to any error in the Judge’s reasons for refusing his application for leave to apply for judicial review.  We also see no basis to disturb the Judge’s conclusion that the applicant’s intended judicial review is not reasonably arguable and has no realistic prospect of success.

17.  The applicant’s intended appeal against the Judge’s decision has no prospect of success.  As such, it would be futile to extend the time for appealing. Accordingly, we refuse the application for leave to appeal out of time, and dismiss the applicant’s summons.

18.  Since the 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.