RE ALI MAJID

CACV 513/2018

[2019] HKCA 249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 513 OF 2018

(ON APPEAL FROM HCAL NO. 1064 OF 2017)

_____________________

_____________________

_____________________

J U D G M E N T

_____________________

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

1)  The appeal

1.   This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan given on 5 October 2018 in which he refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1   The applicant is a national of Pakistan. On 2 December 2013 he entered Hong Kong illegally.  He lodged his non-refoulement claim for which he later completed a non‑refoulement claim form on 13 April 2016.

2.2   The basis of the applicant’s claim is that he would be harmed or killed by the family of the person whom he allegedly killed in a fatal traffic accident.

2.3   The background facts have been summarized in the decision of the Judge at [2]-[7].

3)   The Director’s Decision and the Director’s Further Decision      

3.1   The Director decided against the applicant’s torture claim on 13 May 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2   By a further decision of the Director of 16 March 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant (‘Director’s Further Decision’).

4)  The Board’s Decision

4.1   The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 22 September 2017, the Board dismissed the applicant’s appeal on 24 November 2017 (‘the Board’s Decision’).

4.2   The Board found the applicant’s evidence was internally inconsistent with his claim which raised serious concerns about his overall credibility.  It did not accept that he was ever involved in a fatal traffic accident or that the family of the alleged victim pursued him and found that the applicant’s claim did not engage non-refoulement protection in Hong Kong.  Further it held that even if it had reached a different conclusion on the facts, on the basis of reliable Country of Origin information, it would have found that the applicant could have relocated within Pakistan given its large population and vast territory in large cities such as Karachi or Islamabad where he could live safely without the fear of being located by his perceived enemy.

5)  Decision of the Judge

5.   Dealing with the applicant’s complaints, the Judge first held that the applicant had no absolute right to free legal representation at all stages of his proceedings.  On the applicant’s complaint that he never received the Director’s Further Decision, the Judge held that there was no evidence to support such a claim.  Even if such matter did occur, the Judge held that this was never raised before the Board when the applicant had the opportunity to do so.  On the applicant’s challenge to the Board’s assessment of his credibility, the Judge could not find errors in the Board’s Decision which justified his intervention.

6)  Grounds of appeal

6.1   The content of the applicant’s notice of appeal is not clear.  It stated that :

‘ The learned judge wrongly exercised her discretion in that that leave to apply judicial review of the Director Decision was refused because the Director Decision…

Applicant did not give any explanation for the delay. In any case, he had the opportunity of an appeal before the TCAB and he had made use of that channel to challenge the Director’s Decision. Leave to apply for judicial review of the Director’s Decision is refused…

By the time the Director’s Decision was made, I have already lodged the appeal at the TCAB, which was an appeal against their decision under the 3 grounds for non-refoulement…and not BOR 2, as it was not one of the grounds under non-refoulement…Having regard to the above circumstances, the learned judge ought to have considered the application procedure and not apply the time restriction in the current scenario…’

6.2   In his affirmation filed on 11 October 2018, the applicant set out various grounds of complaints against the Director’s Decision, but he did not raise any complaint against the Judge’s Decision.

6.3   The applicant failed to comply with the directions of the Registrar of Civil Appeals on 7 November 2018 requiring him to lodge skeleton arguments 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

6.4   The hearing on 19 February 2019 was therefore vacated.  We will deal with the appeal on paper on the basis of the materials already filed with the Court.

7)  Our view

7.1   We are of the view that the applicant’s appeal is without merits. 

7.2   Apart from being fragmented and unclear in its meaning, the matters as stated in the applicant’s notice of appeal bear no relationship to the case.  The issue of delay was not an issue in the judicial review application.  If the applicant meant that his appeal on BOR 2 risk should be placed before the Board, it is misconceived because by the time the Board heard the appeal, the Director had made his decision on the BOR 2 risk ground and the Board determined the appeal on all applicable grounds, including BOR 2 risk ground.

7.3   Like the Judge, we do not see any error of law or procedure in the decisions of the Director and the Board or any unfairness in the process.  We agree with the Judge that the intended judicial review is not reasonably arguable and has no prospect of success, and leave to apply for judicial review should be refused.

7.4   Accordingly, the appeal is dismissed.