RE MUHAMMAD NASIR

CAMP 3/2020

[2021] HKCA 36

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1384 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By the decision of 3 September 2019 (“the Decision”)[1], Deputy High Court Judge Josiah Lam (“DHCJ Lam”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 19 June 2018.  In the Board’s decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 2 March 2011[2] and 31 July 2017[3] rejecting the applicant’s non-refoulement claim.

2.  On 3 October 2019, the applicant took out a summons for an extension of time to appeal against the Decision.  On 17 December 2019, Deputy High Court Judge Bruno Chan (“DHCJ Chan”) refused to grant leave for the applicant to appeal against the Decision (“the Leave Decision”)[4].

3.  By a summons dated 6 January 2020, the applicant sought leave from this Court to appeal out of time against the Leave Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 10 January, 16 March and 11 May 2020 and the unless order made on 27 May 2020, the applicant lodged his written submissions on 8 June 2020. 

5.  Under Order 59 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.  Having considered the summons and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Pakistan.  He first came to Hong Kong on 10 June 2002 and was permitted to remain in Hong Kong as a visitor until 25 June 2002.  On 25 June 2002, he departed Hong Kong for the Mainland China and returned to Hong Kong on 27 June 2002 and was permitted to stay until 4 July 2002.  He did not depart and overstayed since 5 July 2002.  He was arrested by the police on 21 February 2005 and was repatriated to Pakistan under a removal order on 18 May 2005.  In February 2006, he sneaked into Hong Kong again. On 20 March 2008, he was arrested by the police for using a forged identity card and illegally remaining in Hong Kong. 

7.  On 26 May 2008, he lodged a torture claim.  His claim was rejected by the Director on 2 March 2011 and his appeal against the Director’s decision was rejected by the Board on 11 April 2011.  By the decision made by Au J (as he then was) on 23 January 2014 under HCAL 164/2012, leave to apply for judicial review was granted on ground 1[5] and ground 3[6] as set out in Form 86 dated 4 December 2012.  By the Consent order dated 25 March 2014, the applicant’s non-refoulement protection claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was remitted to the Board for determination afresh. 

8.  By then, the Unified Screening Mechanism had come into place and the applicant lodged a non-refoulement claim on 24 November 2014 on the basis that he would be harmed or even killed by six unknown men who blackmailed and harassed him in Pakistan as he refused to give them extortion money.  The factual background was succinctly summarized by DHCJ Lam at [2] – [10] of the Decision.

9.  By Notice of Decision dated 31 July 2017, the Director assessed the applicant’s claim on the BOR 2 risk[7], the BOR 3 risk[8], and the persecution risk[9] and determined against him.

10.  The applicant lodged an appeal/petition to the Board against the Director’s decision dated 31 July 2017.  After the hearing on 2 and 8 May 2018, the Board dismissed the appeal on 19 June 2018.  The Board found that the six men who pursued the applicant after two incidents of encounters[10] were no more than street bullies who took a convenient chance of harassing a lone passer-by for extortion of money[11].  His allegation that the six men assaulted his son aged at late twenties and the death of his wife due to heart attack after learning the attack on the son were not substantiated with evidence and not accepted[12].  The medical certificates produced by the applicant to support his case of assault by the six men did not corroborate with the episode of attacks as alleged by the applicant[13].  Further, reasonable state protection should be available and internal relocation is also a viable option.[14]  For the aforesaid reasons, the Board rejected the applicant’s case on all applicable grounds. 

11.  On 13 July 2018, the applicant filed a Form 86 together with his supporting affirmation for leave to apply for judicial review of the Board’s decision.  The applicant did not provide any ground for his intended challenge and only wrote in his affirmation “I am writing this letter because I do not really understand and satisfied about my case/status decision”.

The decision of DHCJ Lam

12.  DHCJ Lam heard the case on 26 September 2018.  As the applicant had not provided any ground of application, he was asked at the hearing to state his grounds in court.  He was given time to organize himself and to instruct the interpreter to write on his behalf.  With the assistance of the interpreter, the applicant put forward the following:

i.  “I am not a lawyer and I do not have any assistance of a lawyer therefore I cannot find any detailed point.  But I know that according to one rule of USMS if there is any human rights violation the case should be reviewed again”.

ii.  “The adjudicator did not understand my story or did not pay much attention to my case”.

13.  By its decision made on 3 September 2019, the Judge decided to refuse leave for the applicant to apply for judicial review after due consideration of the Director’s and Board’s decisions. The reasons were duly set out at [34] to [41] of the Decision:

“34. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

35. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

36. The Applicant said he had no legal representation after 2011/2012. That was not true. He was represented by the Duty Lawyer Service before the Director in 2017 and also represented by a duty lawyer in both hearings before the Adjudicator in May 2018.

37. The Applicant said he had a heart problem and did not feel well on the second hearing day before the Adjudicator, i.e. 8 May 2018. There was no evidence of that. The duty lawyer was there. He would certainly safeguard the Applicant’s interests. There was no evidence he overlooked the Applicant’s condition or failed his lawyer’s duty.

38. The Applicant complained the Adjudicator did not understand his story and did not pay much attention to his case. That was untrue. The Adjudicator had held two hearings with the Applicant and his counsel. There was detailed inquiry of the Applicant’s claim. There was no evidence the Adjudicator hurried anyone in the hearings or that he considered the Applicant’s case thereafter hastily.

39. The Applicant said if there was any human rights violation, his case should be reviewed again. He, however, failed to prove there was any human rights violation in his case.

40. The Adjudicator had analyzed the Applicant’s claim in depth. He found the Applicant was merely blackmailed by the six men in chance encounters. The men had not pursued him after the second encounter. The Applicant ran for his life for no good reason. The Adjudicator did not find there was any non-refoulement risk facing the Applicant. The Adjudicator had referred to country-of-origin information (‘COI’). He was satisfied reasonable state protection and internal relocation were available to the Applicant in any event. He rejected the Applicant’s claim for non-refoulement protection with respect to all the four applicable grounds.

41. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant and his counsel in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s claim.”

14.  The 14-day period for the applicant to appeal the Decision, as stipulated by Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), expired on 17 September 2019.  On 3 October 2019, the applicant filed a summons together with supporting affirmation to apply for leave to appeal out of time. 

15.  The summons was heard on 21 November 2019 and by the Leave Decision made on 17 December 2019, DHCJ Chan refused the application for leave to appeal out of time.  DHCJ Chan took the view that the applicant’s delay for about 2 weeks might not be regarded as substantial, for which the applicant explained at the hearing that he never received the Decision through the mail and was only told of it when he came to the court to check on his case.  However, he was unable to provide any further details or particulars as to when he came to the court to check his case, while the record showed that the Decision was indeed sent to his last reported address on the same day when it was handed down and that it had never been returned as undelivered.  DHCJ Chan did not accept the applicant’s explanation for his delay.[15]  More importantly, the applicant failed to provide any grounds of appeal in his summons or affirmation to pinpoint any error in the Decision.  He was given the chance to do so at the hearing but he merely repeated his case that his life would still be in danger if he were to return to his home country and therefore he needed more time to stay in Hong Kong.[16] As such, DHCJ Chan did not see any prospect of success in the intended appeal and thus dismissed the summons. 

The renewed application

16.  On 6 January 2020, the applicant filed a summons seeking leave to appeal against the Leave Decision on the following grounds:

Against the Director’s decision

(1)  The Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case.  This led to an unfair outcome of rejecting the applicant’s non-refoulement claim.

(2)  The applicant was tortured by the Pakistani police which colluded with the state law enforcement agencies as well as those in the high ups of political circles.  The whole saga of misfortune was a direct result of misconduct of police officials.

(3)  The state and the public officials failed to provide reasonable protection for its citizens under the duty of due diligence.

(4)  The Director had failed to take such argument into account or failed to give sufficient weigh to those evidence and ruled otherwise.

(5)  Although the Director had listed relevant COI which supported the applicant’s aversions that the police in Pakistan would not protect its people, he failed to consider or give sufficient weight to those evidence and ruled otherwise.

(6)  The Director referred and interpreted the relevant COI to suit his pre-conceived conclusion.  It was a clear case of adoption of unfair attitude and the decision should be void.

(7)  The corruption and incompetency of the Pakistani administration is still a very serious problem.  Various human rights organisation complied reports which stated the applicant’s assertions.

(8)  The Director had failed to attain the high standard of fairness in making its decision and the decision should be considered unreasonable in public law.

Against the Board’s decision

(9)  The Adjudicator failed to make sufficient enquiries before making the decision.  The Adjudicator stated that the applicant failed to give any credible evidence to prove material elements of his claim.  It should be noted that the applicant is a torture claimant and has no or limited options at his disposal to bring his evidence before the tribunal especially when he was in custody at the Immigration Detention Centre.  The Adjudicator had failed to give sufficient chance to the applicant to arrange relevant evidence for his non-refoulment claim and his appeal.

17.  In his written submissions, he advanced the following:

(1)  It is his fundamental human right not to be subject to torture and high standards of fairness are required in determination of his non-refoulement claim as the decision had significant implications for his substantive right and his claim.  He cited ST v Director of Immigration[17] and quoted some passages in Secretary for Security v Sakthevel Prabakar[18] in support of his assertions. 

(2)  The Adjudicator had acted in a procedurally unfair manner without properly assessing his credibility.  He averred that by the doctrine of Wednesbury unreasonableness, an administrative decision should be set aside if it was unreasonable.  He cited Associated Provincial Picture Houses Limited v Wednesbury Corporation[19] and R v Ministry of Defence, ex p. Smith[20] in support of his complaint.

(3)  He referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is a provision concerning the late filing of notice of appeal to the Board.

Legal principles

18.  As pointed out by Lam VP in Farrukh Zaib v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office & other [2020] HKCA 408 at [21], whilst it is technically possible to appeal against a lower court’s decision refusing an extension of time for appealing, it is more appropriate to renew the application for an extension of time before the Court of Appeal[21].  Accordingly, we shall treat the applicant’s summons as if it were a renewed application for leave to appeal against the Decision out of time.

19.  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 respondent if an extension of time were granted.

20.  Even if the court does not accept that the applicant’s explanation for delay as reasonable, the court would still examine if he has merit in the intended appeal: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

21.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  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 appellant 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.

(3)  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 this Court 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 stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A).

Discussion

22.  Although the applicant’s delay of about two weeks was not serious, we agree with DHCJ Chan that the applicant failed to give any good reason to explain his delay and the evidence showed that he should have received the Decision at his last reported address.  In the circumstances, we are not prepared to excuse the delay.  As such, the applicant is required to demonstrate that the intended appeal has real prospect of success, before leave of appeal is to be granted, see Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020.

23.  We now turn to the merit of the intended appeal.

24.  The grounds of appeal advanced in the applicant’s summons and written submissions were directed at the Director’s and the Board’s decisions and none had pinpointed any error of law or procedural unfairness or irregularities in the decisions made by DHCJ Lam and DHCJ Chan and they are not viable ground of appeal.  Following the legal principle as stated in [21] of this judgment, his intended appeal is bound to fail. 

25.  Further, upon our careful review of the Board’s decision, the applicant had failed to establish his case under all applicable grounds as his alleged fear and risk was a local one and private in nature and he would not even identify any of the six gangsters whom the Board found to be “no more than street bullies who took a convenient chance of harassing a lone passer-by with a hope to extort money from him (applicant)”[22]. With the passage of time of more than 15 years since the alleged incident of assault that took place in August 2005, the Board had reached the right conclusion that there would not be a persistent intent on the part of the gangsters to extort money from the applicant and therefore he would not be at risk of physical or mental harm if refouled. 

26.  In our judgment, the Board’s decision is well justified and we see no error of law or procedural unfairness or irregularities for us to intervene.  We are also satisfied that DHCJ Lam had reviewed the Board’s decision with vigorous examination and anxious scrutiny and had rightly rejected the applicant’s case.

27.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 6 January 2020 is dismissed accordingly.

28.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap.4A), no party may request this determination be reconsidered at an oral hearing inter partes.

[1] [2019] HKCFI 2164.

[2] The Director’s decision in respect of the applicant’s torture claim under Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] The Director’s decision in respect of the applicant’s non-refoulement protection after the Unified Screening Mechanism came into place on 31 March 2014.

[4] [2019] HKCFI 2924.

[5] Ground 1 was the applicant’s complaint on procedural impropriety for the Adjudicator’s failure to conduct an oral hearing in dismissing the applicant’s petition: see pp. 18-36 of the Form 86 dated 4 December 2012 under HCAL 164/2012.

[6] Ground 3 was the applicant’s complaint on procedural impropriety for the insufficient inquiry by the Director and the Adjudicator when making their respective decision / determination: see pp 37-42 of the Form 86 dated 4 December 2012 under HCAL 164/2012.

[7] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[8] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[9] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[10] [6] and [7] of the Board’s decision.

[11] [42] of the Board’s decision.

[12] [41] of the Board’s decision.

[13] [43] – [49] of the Board’s decision.

[14] [56] – [59] of the Board’s decision.

[15] [5] of the Leave Decision.

[16] [6] of the Leave Decision.

[17] The correct citation should be ST v Betty Kwan [2014] 4 HKLRD 277.

[18] [2005] 1 HKLRD 289.

[19] [1948] 1 KB 223.

[20] [1996] 1 All ER 256.

[21] See Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8]. 

[22] [42] of the Board’s decision