RE WAKALAT RAZA

CAMP 134/2019

[2020] HKCA 493

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 134 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 991 OF 2017)

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J U D G M E N T

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

Introduction

1.  By a decision as set out in Form CALL-1 dated 14 December 2018 (“the Judge’s Decision”) [2018] HKCFI 2541, Campbell-Moffat J (“the Judge”) refused to grant leave to the applicant to apply for judicial review.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board (“the Board”) dated 8 November 2017 (“the Board’s Decision”) dismissing the applicant’s appeals against the decisions of the Director of Immigration (“the Director”) dated 31 May 2016 (“the Director’s First Decision”) and 19 September 2017 (“the Director’s Second Decision”).

3.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

4.  The applicant issued a summons on 11 February 2019 before the Judge seeking leave to appeal the Judge’s Decision to the Court of Appeal out of time.  Pursuant to Order 53, Rule 3 (4) of the Rules of the High Court (Cap 4A), he had 14 days to appeal the Judge’s Decision, the deadline of which expired on 28 December 2018.  He was thus more than two months out of time.  On 28 May 2019, the Judge refused to grant leave to the applicant (“the Judge’s Leave Decision”) [2019] HKCFI 1388.

5.  By a summons dated 18 June 2019 (“the Summons”), the applicant renewed his application for leave to appeal before this Court. Again, his renewed application was late for seven days[1].  Further, he failed to file his written submissions by the time limit as directed by the Registrar of Civil Appeal on 19 June and 8 July 2019.

6.  Having considered the Summons, we take the view that the renewed application can be disposed of on paper without an oral hearing pursuant to Order 59, rule 2A(5)(a) of the Rules of the High Court.  This is our judgment.

Background

7.  The applicant is a national of Pakistan.  he entered Hong Kong on 28 July 2004 as a visitor but was later deported to Pakistan for breach of condition of stay in June 2005.  He entered Hong Kong again on 10 July 2006 illegally and was arrested on 15 October 2006. He lodged his torture claim but was eventually withdrawn on 21 January 2013.  The attempt to re-open the torture claim was unsuccessful.  In the end, the applicant applied for his non-refoulement protection on 25 November 2015.

8.  The details of the applicant’s claim and his personal background were set out in paragraphs 5 - 7 of the Director’s First Decision, and paragraphs 9 - 21 of the Board’s Decision.

9.  Briefly stated, the applicant claimed that if he were to return to Pakistan, he would be harmed or killed by a man called Saleem Akhtar (“Saleem”).  The applicant was a member of Pakistani Muslim League “N” (“PMLN”).  In a large scaled rally of PMLN in around 2002 or 2003, he acted as a bodyguard.  During the rally, members of Pakistan Peoples’ Party (“PPP”) sabotaged the rally and attacked the applicant and his friends.  Saleem claimed that the applicant injured him during the chaos in the rally, which resulted in the applicant’s imprisonment for around 10 months. After his release, he came to Hong Kong but still heard from others that Saleem was looking for him.  Upon his deportation to Pakistan, the applicant claimed that the danger from Saleem still existed though nothing happened.  The applicant also claimed that he joined Pakistan Tehreek-e-Insaf (“PTI”) in around 2015 and since then he had been receiving threats from PMLN members because they saw him as a betrayer.

The Director’s Decisions and The Board’s Decision

10.  By the Director’s Decisions, the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[2], the persecution risk[3], and the torture risk[4]. The Director’s Second Decision assessed the BOR 2 risk[5].

11.  The applicant appealed the Director’s Decisions to the Board.  The Board heard the applicant on 28 September 2017, during which the applicant answered the questions raised by the Board.  After the hearing, the Board dismissed his appeal.  The Board found that the applicant’s evidence was vague and general.  He claimed to have memory loss in relation to his claims, which the Board did not accept since the applicant did not have any difficulties in recalling the events before the Director.  Although the Board accepted that there was a fight during the rally and that the applicant was arrested in 2003, it rejected the applicant’s claim that there was a risk if he returned to Pakistan since he had not seen Saleem after his release from prison and that he admitted his charges were all dropped.  Further, there was doubt as to his membership in PTI.  As result, the Board did not accept the applicant’s claim (paragraphs 41 - 52 of the Board’s Decision).

The Judge’s Decision

12.  On 1 December 2017, the applicant filed his Form 86 with a supporting affirmation for leave to apply for judicial review against the Board’s Decision.  The grounds for review listed in his supporting affirmation were summarized by the Judge at paragraph 10 of the Judge’s Decision:

“10. There were 11 grounds of review. They follow a similar pattern to those often submitted and are without any supporting clarification. This is unhelpful and not to the applicant’s credit. They can be summarised as follows, in so far as the applicant complains as against the Adjudicator, he submits that the Adjudicator:

i) failed to consider the concept of state acquiescence or extended state acquiescence;

ii) made insufficient enquiry;

iii) failed to provide sufficient reasons;

iv) failed to consider COI;

v) failed to place weight on relevant matters or selectively placed weight on irrelevant matters or inaccurate or incorrect facts;

vi) failed to consider a consistent pattern of human rights violations;

vii) failed to consider if state protection exists in India (!!);

viii) failed to call for psychological or psychiatric reports;

ix) applied the incorrect standard of proof;

x) had no reasonable basis for the rejection of the applicants claim; and

xi) had no proper basis for the consideration of internal relocation.”

13.  The applicant did not request an oral hearing before the Judge.  After considering the grounds of review and other documents available before her, the Judge dismissed the applicant’s leave application. She set out her reasons at paragraphs 11 - 21 of the Judge’s Decision:

“11. The applicant has not identified any specific procedural irregularity, unfairness or unreasonableness by reference to the Adjudicator’s Decision. He has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. Nothing is gained by simply adopting grounds drafted by someone else who is not even the same nationality as the applicant. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

12. Based upon the facts of this case, grounds i), vi), vii) and viii) are irrelevant and without merit.

13. As to ground ii) the applicant was invited to attend a hearing on 28 September 2017. The procedure for the hearing was explained to him. He was invited to answer questions and to add any further information which he wished to add. The Adjudicator was in possession of all relevant documentation, which he read. It is clear that the Adjudicator gleaned further information from the applicant at the hearing including the applicants current state of health. It was also clear that the applicant was unable to remember most of his original story or what had happened to him in Pakistan. In the absence of being able to clarify the issues raised, what more does the applicant expect the Adjudicator to do? It is for the applicant to establish his case. There is no merit in this ground.

14. As to ground iii), the Adjudicator outlined all available evidence and identified the limitations of it. He explained his reasoning in some detail and commented upon the applicant’s apparent loss of memory before the Board which was not present during the hearing with the Director some 18 months previously. The Decision of the Adjudicator was 22 pages in length and provided a detailed exposition of his views in language which the applicant would be able to understand. This ground also fails.

15. As to ground iv), there is no duty upon the Adjudicator to identify what COI he has referred to. Such research would depend upon the facts of the case. The allegation was one of a personal vendetta by a bodyguard who happened also to be member of a different political party, although the single incident in question arose not out of political affiliation but out of a work related incident in which the applicant admitted he too was involved in the fight which ensued. This appears to be a private vendetta and not politically motivated. The politics of the parties are subservient to the animosity between them. Since that date the applicant has come to no harm. Where then would specific COI come into play? It is for the applicant to at least identify what it is he says the Adjudicator should have known, which he did not, before coming to his decision. There is no merit in this ground.

16. As to ground v), what matters? It appears from the Decision that the Adjudicator did his best to establish the facts from the applicant who, by and large, could not answer because he could not remember. What facts did he not take into account? What facts did he take into account but in error? Which facts were incorrect? It is for the applicant to look to the Decision and identify where his complaint lies. He is not prejudiced in doing this as it is his case and he was present at the hearing. He is not required necessarily to place a legal label upon it but common sense dictates he should be able to say where he felt the Adjudicator failed to listen.

17. As to ground ix), there can be no criticism of the application by the Adjudicator of the burden and standard of proof. There is no merit in this ground.

18. As to ground x), the Adjudicator explained his reasoning for rejecting the applicant’s claim and he cannot be faulted for that reasoning. Without more, this court cannot see any merit in this ground.

19. As to ground xi), the Adjudicator considered all necessary elements of the claim and came to the conclusion that the applicant’s claim lacked credibility. Having rejected the applicant’s claim and explained in detail why he did so, there was no necessity for him to consider whether relocation was an option. His decision making did not turn upon this point. There is no merit in this ground.

Conclusion

20. I have considered the papers and grounds carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. He was hindered by the fact that the applicant could no longer remember even some of the more obvious elements of his case. The applicant was not believed. The Adjudicator explained why that was the case. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

21. In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.”

Extension of time in the court below

14.  In his summons dated 11 February 2019 seeking leave to appeal out of time before the Judge, the applicant explained that he did not receive the Judge’s Decision.  By the Judge’s Leave Decision, the Judge refused to grant the extension of time to the applicant.  She set out the reasons at paragraphs 4 - 9 of the Judge’s Leave Decision:

“4.  In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired. The granting of an extension of time is entirely within the discretion of the court. The applicant is required to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time.

5.  The applicant claims that he did not receive the Order but gives no further explanation as to his delay. The court file suggests that the Form CALL-1 and Order were properly served upon the address given on the Form 86. This is the same address the applicant uses today save that he has added ‘Flat A’ to his previously listed address. The applicant maintains that he only learnt of the refusal of leave when an officer from the Immigration Department contacted him to deal with his return to his home country. This he says was in early January. However, it took him until 30 January 2019 to inspect the court file and draft the summons which was then filed on 11 February 2019. His explanation for that further delay was that Chinese New Year intervened.

6.  The affirmation in support of his appeal was drafted by a third party as the applicant is illiterate. It is not currently in proper form but in the event that matters not. His outline grounds of appeal bear little relation to the proceedings at hand. They are not identical to those relied upon in his claim for judicial review but they are similar in style and nature. They clearly relate to the underlying claim. The applicant has not provided any indication of how these grounds are made out or to what they refer. They are not applicable to an appeal from my decision to refuse leave. The applicant was unable to make any specific submissions as to the manner in which he felt this court had erred.

Conclusion

7.  The applicant has now been in Hong Kong since 2004. He has been interacting with various government agencies for the entirety of that period and accepts he received all necessary documents and notifications. The explanation he has offered to this court, as to why he did not receive the Order is not acceptable.

8.  In any event, I have considered inter alia his underlying application. It has no merit as explained at some length in the initial refusal of leave. The grounds of review advanced were generic and without reference to specifics as are the grounds he now relies upon for appeal. There was no complaint before the court as to the decision to refuse leave. He wishes the Court of Appeal to consider his situation afresh. Having considered the length of delay, reason for the delay and underlying merits of his application as well as his proposed grounds of appeal, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

9.  The applicant’s summons of 11 February 2019 be dismissed.”

Renewed application to this court

15.  By way of the Summons, the applicant renewed his application to this Court.  In the Summons and his supporting affirmation filed on the same date, the applicant simply stated that he wished to challenge the Judge’s Leave Decision and that he “didn’t had the appropriate means” nor he received the decision on time.  Other than that, he did not put forward any intended grounds of appeal.

Discussion

16.  This court has a discretion to extend time to appeal out of time.  The court however will only consider whether to do so after taking into matters such as (a) the length of delay, (b) the explanation of the delay, (c) the merits of the intended appeal, and (d) the prejudice to the respondent is time to appeal is extended.  See: Re MA [2019] HKCA 1020 at [14] - [15].

17.  In our view, this application is without merits.

18.  First, a delay of more than two months is substantial and significant in the context of an only 14-day statutory appeal period as provided by the rules.

19.  Second, as mentioned above, the Judge contended that his delay was inexcusable.  In the present application, the applicant again merely repeated that he did not receive the Judge’s Decision.  We agree with the Judge’s analysis that the applicant’s explanation was unacceptable.

20.  Third, there is plainly no merit in the intended appeal.

21.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The following is pertinent in considering the present appeal.

22.  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.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court.

23.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in the Judge’s Decision or the Judge’s Leave Decision.

24.  As mentioned, the applicant did not put forward any intended grounds of appeal.  Thus, there is simply no viable ground for this Court to intervene the analysis of the Judge.

25.  For these reasons, we will refuse to extend time for the applicant to appeal, and dismiss the Summons accordingly.