RE KHAN JAN MUHAMMAD

CAMP 52/2018

[2018] HKCA 349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 52 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 218 of 2017)

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J U D G M E N T

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

1.  By summons filed on 27 April 2018, the applicant seeks leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 20 March 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 21 April 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 13 April 2016 and 29 March 2017 rejecting his non-refoulement claim. 

2.  Both the Board and the Director have written to the court indicating that they adopt a neutral stance in this application.

3.  In [28] of his written submission, the applicant requests a hearing of his appeal.  We assume this is a mistaken reference to the current application for leave to appeal.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, the Court may determine an application for leave on paper without an oral hearing.  Having considered the papers and the applicant’s written submission, we are of the view that it is not necessary to hold an oral hearing and it is appropriate to determine the application on paper without a hearing.

4.  The applicant is a Pakistani national.  He was born and raised in Village Kamalpur Musa, Tehsil and District Attock, Punjab.  After receiving two years of formal education, he did farming and mechanical work for a living before moving to live and work in Karachi, where he subsequently bought a house.  Some of his brothers also live in Karachi.  In March 2008, following a dispute with some people who wanted to buy his family’s land at an undervalue, the applicant came to Hong Kong.  He returned to Pakistan in May 2011 after the dispute was resolved.  During his stay in Hong Kong, the applicant met his wife, who is a Hong Kong permanent resident.  They married in Pakistan in 2011.   

5.  On 21 April 2014, the applicant flew from Pakistan to Guangzhou.  On 23 April 2014, he entered Hong Kong without permission.  He was arrested by police on 24 April 2014 for remaining in Hong Kong illegally.  He made a torture claim on 26 April 2014. 

6.  The applicant’s claim is based on his fear that if he were to return to Pakistan, he would be harmed or killed by the family of Ruqia Bibi (“Ruqia”), the former wife of his brother (“Shaukat”) following a dispute that arose from their divorce. 

7.  It is the applicant’s case that in February or March 2013, Ruqia filed a divorce against Shaukat in Pakistan.  The applicant accompanied Shaukat to attend court, during which Shaukat told the judge that he agreed to the divorce.  Before leaving the court, Ruqia’s father told the applicant that the proceedings were none of his business.  When the applicant responded, Ruqia’s father said he would not let the applicant live. Ruqia’s father further said they would take revenge on Shaukat because he had insulted them in court.

8.  Two weeks later, the applicant met Ruqia’s uncle (“Maan”) and cousin at a bus stop.  Maan told the applicant he had messed with their family and they would not let him live.  He also said that the applicant did not respect their family and he was his enemy.  Maan died in 2015. 

9.  After the encounter with Maan, the applicant went to Karachi to live with one of his brothers.  In about August 2013, two men came to this brother’s house to look for the applicant.  They told the applicant that Ruqia’s family was looking for him.  Later that evening, as the applicant was going out, he saw the men near his house and they were talking to each other.  The applicant became frightened.  He then made arrangement to go to China as he wanted to come to Hong Kong to seek protection. 

10.  By a decision dated 13 April 2016, the Director rejected the applicant’s non-refoulement claim, having considered torture risk[1], BOR 3 risk[2] and persecution risk[3].  By a letter dated 28 February 2017, the Director invited the applicant to submit additional facts that he considered relevant to a claim on the BOR 2 risk[4] ground.  The applicant did not reply to the letter.  By a further decision dated 29 March 2017, the Director determined that the applicant failed to establish a personal and real risk of violation of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 including the right to life under Article 2.     

11.  The applicant appealed to the Board.  An oral hearing took place on 5 April 2017.  By its decision dated 21 April 2017, the Board dismissed the applicant’s appeal.  The Board found on the facts that there is no real risk that the applicant will be killed or otherwise harmed if he returns to Pakistan.  The Board concluded that the applicant failed to establish a real risk of persecution or torture or threat to his right to life within any of the applicable grounds.  The Board also found relocation to be viable if that should be necessary.   

12.  The applicant filed his Form 86 on 19 May 2017 together with a supporting affirmation.  The Form 86 did not set out any grounds for the intended judicial review application.  In the supporting affirmation, the applicant advanced two principal grounds:

(1)  He did not receive the Director’s letter dated 28 February 2017 and he did not have any opportunity to submit additional facts for his BOR 2 risk claim.         

(2)  The Board’s decision was procedurally unfair. The approach to the country of origin (COI) information was selective and failed to address the negative aspects that support his claim, especially information about the corrupt police in Pakistan and the violence committed on minorities. 

13.  The Judge refused to give leave to apply for judicial review as he considered the intended judicial review was not reasonably arguable and had no realistic prospect of success.  In [12] to [17] of the CALL-1 Form, the Judge stated:

“12.For the first ground, the evidence is that he did receive the letter dated 28 February 2017 from the Immigration Department inviting him to submit additional information relevant to his non-refoulement claim on all applicable grounds including those under BOR 2 risk, as he so confirmed when he appeared before the Board on 5 April 2017 in the appeal, as it was stated in its decision as follows:

‘14. The Applicant said that although he had received the letter from the Immigration Department dated 28 February 2017, he had not received the Notice of Further decision dated 29 March 2017. I explained to him that since the department had not received any reply from him to their letter of 28 February 2017, by 14 march 2017, the date specified in that letter, the Department had gone on to consider there was a real risk that any of the Applicant’s absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance (including the right to life under BOR 2) would be violated if he returned to Pakistan and concluded that they would not. I said that I would be considering his appeal and petition on all applicable grounds, including the right to life under BOR 2, and that it was not necessary for him to file a separate and further petition in relation to the Further Decision of the Department.’

13. It is therefore clear to me that having received the letter inviting him to submit additional information relating to BOR 2 risk, the applicant never submitted any such information to the Director, and when he later appeared before the Board when he again had had the opportunity to do so or to advance his case further and fully on BOR 2 risk, but again he never did so. At any rate both the Director and the Board did go on to properly consider his claim under BOR 2 risk and found none has been established by the applicant should he return to Pakistan. There is therefore in my judgment no merit at all in this ground of the applicant.

14. As regard the use of COI, in the absence of any particulars or specifics from the applicant as to how the Board has been selective in its use, it is therefore not clear in what way or manner is he claiming procedural unfairness in this regard, but in going through the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I am satisfied that both of them did give due and proper consideration of objective and varied up-to-date materials of reliable and reputable international standard, some of which did corroborate the applicant’s case but others supported their findings that there is state protection available if any risk arises for the applicant, and that it would be reasonable in the circumstances of his case to return to live and work safely in Pakistan away from his hometown such as Karachi where he had lived for a considerable period before and where it is virtually impossible for RB’s family to locate him even assuming the unlikely situation that they still hold any grudge against him given that RB’s divorce with his brother has been resolved more than four years ago, as the Board rightly pointed out.

15. The very broad statement of the applicant about the corruption of police in Pakistan does not assist his case as the Board has found, and rightly so on the applicant’s own case, that the risk from RB’s family is a localized one with no evidence that the local police was involved, let alone one of the state or a “state agent”, as pointed out by Cheung CJHC in his judgment in TK v Michael Jenkins CACV 286/2011:

‘32. Fourthly, the question of internal relocation (otherwise known as ‘internal flight’). This is a concept common to refugee law and torture claims. The rational is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the ‘internal relocation alternative’), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.

33. There may be different reasons why the risk of torture is a localised one. For instance, where the torturer is not the state or a ‘state agent’, he may not be prepared, willing or able to pursue the claimant outside of the local place in question or to the internal relocation alternative(s) concerned. Or meaningful state protection against the risk of torture is available to the claimant outside of the local place in question or in the internal relocation alternative(s) where the risk of torture is non-existent or insubstantial. If the risk of torture is for one reason or another a localised one, one must move on to ask whether it is reasonable to expect the torture claimant to relocate to the alternative place or any of the alternative places under consideration or whether it would be unduly harsh to expect him to do so.’

16. This is exactly what the Board has done in its consideration of the applicant’s claim and in arriving at its conclusion on the availability of reasonable internal relocation alternatives to the applicant. Accordingly, I do not see any error in law or procedural unfairness in its decision, or for that matter in the Director’s, or any failure on their part to apply a high standard of fairness in their assessment of his claim.

17. In the premises and for these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

14.  The 14-day period for the applicant to appeal against the Judge’s decision expired on 3 April 2018[5]. On 27 April 2018, the applicant took out the present summons applying for leave to appeal out of time.

15.  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, 22.01.2016). 

16.  In this case, the applicant was late by 24 days.  The applicant explained in his affirmation filed in this application that when he received the Order from the Court, he was uncertain as to what to do as there was no reference to any right of appeal. He did not know where he could go to seek advice.  When he came to the High Court, he was frightened by the large number of security officers near the entrance.  It was after some time that he finally understood the content of the documents he received and became aware of the time limit for appealing.  We are prepared to accept the explanation.

17.  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.  The applicant has not provided any ground of appeal in the summons or his affirmation.    

18.  In his written submission, the applicant stated that the Judge wrongly exercised his discretion.  He said that although he had received the Director’s letter of 28 February 2017, it was not accompanied by translation, and he thought it was just a standard letter and was uncertain as to its meaning, hence he did not reply to it.  It is said that it was procedurally unfair for the Director to initiate the BOR 2 risk assessment without referring the case back to the Duty Lawyer Service.  The applicant also complained that the decision of the Board and of the Judge had not been officially read or translated to him. 

19.  On the COI, the applicant stated that he could not provide any particulars as the decision was not read to him, and he only learned from his friends generally that there were COIs that supported his claim and there were some that went against his case.  The applicant further mentioned that he was not given legal representation throughout the procedure at the Immigration Department, the Board and before the Judge.  He argued that failing to provide assistance on language and guidance through the process amounts to a breach of the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security (2004) 7 HKCFAR 187.

20.  In respect of the applicant’s complaint relating to the Director’s further decision on the BOR 2 risk ground, the appeal to the Board was a rehearing.  It is clear from [14] of the Board’s decision that at the hearing before the Board, the Adjudicator had informed the applicant that he would be considering the applicant’s non-refoulement claim on all applicable grounds, including the BOR 2 risk ground.  It was open to the applicant to put before the Board whatever additional information he wished to advance in support of his claim, including information relevant to a BOR 2 risk claim.  He, however, did not do so.  In addition, the applicant had confirmed to the Board that he relied on what he said in his non-refoulement claim form and in the interview at the Immigration Department, and he had further given detailed evidence on his case at the hearing before the Board (see [46] to [52] of the Board’s decision).  The Board had assessed the applicant’s claim on all the applicable grounds before concluding that his claim did not come within any of them.  In our view, there is no merit in this ground.           

21.  Concerning the second ground about the use of COI, even though the applicant had not given particulars of his complaint, the Judge had carefully examined the decisions of the Director and the Board and concluded that they had given “due and proper consideration of objective and varied up-to-date materials of reliable and reputable international standard” that are both in favour of and against the applicant.  Having read the Director’s and the Board’s decisions ourselves, we are in agreement with the Judge’s conclusion. 

22.  As to the complaints about lack of assistance on language and lack of legal representation, these were not part of the grounds put before the Judge.  In any event, we see no merit in these complaints.  This Court has already held in a number of cases that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security  nor the judgment of FB v. Director of Immigration (unreported) HCAL 51 of 2007 prescribes that a non-refoulement claimant has an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37.  In this case, the applicant was assisted by the Duty Lawyer Service and had the benefit of legal representation in presenting his case to the Director.  We discern no unfairness from the non-availability of legal representation in the process before the Board or in the application before the Judge.   

23.  In our view, the Judge was correct in concluding that the applicant’s intended judicial review is not reasonably arguable and has no realistic prospect of success. 

24.  As the intended appeal against the Judge’s decision has no prospect of success, 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.

25.  Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of High Court that the applicant may not request our determination to be reconsidered at an oral hearing.