RE AKRAM MOHAMMAD

HCMP 1601/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1601OF 2016

(ON AN INTENDED APPEAL FROM HCAL NO 205 of 2015)

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JUDGMENT

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

1.  On 2 June 2016, P Li J [“the Judge”] refused to grant leave to the applicant to apply for judicial review regarding a decision of the Director of Immigration of 23 June 2014. The Judge came to that decision after hearing the applicant on 18 May 2016.

2.  In the CALL-1 form of 2 June 2016, the Judge set out the background of the case, paragraphs 1 to 6 are as follows:

“ 1. The applicant was born on 12 June 1980, in Azad Kashmir, Pakistan. He lived with his parents and siblings in Pakistan. He was single. He received education for 10 years. He ran a business of exporting clothes for 3 years until 1998. He and his family supported Azad Kashmir People’s Party. (‘PPP’)

2. He feared that he would be tortured by members of the Muslim Conference (‘MC’) if returned to Pakistan. He had conflict with them during political activities.

3. The applicant entered Hong Kong as a visitor on 10 July 2001. He was allowed to stay for 7 days. He overstayed until March 2008 when he was arrested by the police. He lodged a torture claim on 4 April 2008. He was on recognisance since 27 April 2008.

Background of his application

4. The applicant attended PPP conference in September 1998 during the District Administrative Election. A fight broke out between members of PPP and MC. The applicant joined the fight during which one MC member was shot dead. He managed to escape and went to Khoreta to stay with his uncle. Three to four months later, some MC members came to his home accusing him of murdering that MC member. They harassed his family. He fled to Hyderabad and worked at a factory for 6 months. He then went to Lahore and then left Pakistan for Hong Kong in July 2001. He did not seek any assistance immediately after arriving Hong Kong. He lodged a refugee application with UNHCR in 2009.

5. He feared that he might go to prison for 14—25 years for the murder case. However, he was not wanted by the Pakistani police. No one made any report about the murder. Only that the MC members looked for him. He did not report to the police as he thought they would not protect him. Most policemen were MC people.

6. According to the Director of Immigration, it was reasonable for him to relocate. He could relocate to Karachi. 95% of the people there were Muslims as the applicant. He had lived in Hyderabad, another big city in Singh Province. Under Pakistan law, internal relocation was permissible.”

3.  After adverting to the decision of the Director in rejecting the applicant’s claims under the Convention Against Torture and Article 3 of the Hong Kong Bill of Rights and his failure to appeal against that decision, the Judge recited the history of the proceedings at the court below at paragraphs 9 to 12:

“ 9. The applicant filed an application for leave to judicial review on 22 October 2015. This court wrote to the applicant on 7 January 2016 enquiring about the circumstances of his case, including whether there was an appeal to TCAB, whether there was application for legal aid. This court also asked the applicant to file all relevant documents for consideration. There was no response.

10. In April 2016, this court learnt from the Legal Aid Department that there was no application for legal aid. This court then called the person who filed the Form 86 for the applicant. That person, Mr. Muhammad Sudheer, agreed to assist and would ask the applicant to file an updated address as soon as possible. There was no document filed.

11. This court eventually fixed a hearing on 18 May 2016 to deal with the application.

12. At the hearing, the applicant confirmed that he had not filed any appeal to TCAB. He had left the address recorded in the Form 8 a year ago. He was assisted by a person, Mr. Mustafa Khan, of M.C.A. Lai & Co.”

4.  The Judge gave his reasons for refusing leave at paragraph 13:

“ 13. The applicant chose not to appeal. The reason being that he did not have a lawyer to assist him. I reject this reason. In the circumstances, he has not exhausted all alternative remedies before applying for judicial review. There is no exceptional circumstance which justifies departure from the general rule. It is also not appropriate for this court to review the decision of the Director of Immigration. That should be done by the TCAB.”

5.  Under Order 53 Rule 3(4), the applicant had 14 days to appeal against the Judge’s decision.  He did not do so.

6.  On 23 June 2016, he issued a summons seeking extension of time to appeal.  He accounted for the delay by saying that he did not receive the order of Judge until 2 weeks after it was made.  He further said he did not have any assistance in completing the form for seeking leave to appeal.

7.  These are not good excuses.  According to court records, the Judge actually dismissed the application for leave at the hearing on 18 May 2016 in the presence of the applicant.  He attended that hearing together with a staff from a solicitor firm Messrs MCA Lai & Co.  He intimated that he had paid that firm $3,000 for their services.  At the hearing, the court also reminded the Applicant to provide the court with updated address and telephone number and he confirmed that the address in the court record was correct.

8.  On 2 June 2016, the CALL-1 Form was sent to the applicant at the address he provided to the court.  The address is the same as the address he stated in his summons and affirmation of 23 June 2016.  We do not accept he only learnt of the dismissal of his application two weeks after that document was sent.

9.  He did not explain in his affirmation what happened between 18 May (when he was told that his application for leave was refused) and 23 June (when he filed his summons and affirmation).  Without such information, we do not accept that the alleged lack of assistance as a good ground for extending time.

10.  Further, there is no merit in his intended appeal.  He said the Judge was wrong in believing that he had not appealed against the decision of the Director.  The record of the court indicates that the Judge came to that finding on the basis of what the applicant said to the court at the hearing of 18 May.

11.  That was actually wrong because in a letter of 18 July 2016 from the Department of Justice on behalf of the Director, it was confirmed that the applicant had appealed to the TCAB/NCPO and the appeal was dismissed on 22 January 2015 (after an oral hearing being held on 24 September 2014).

12.  In his affirmation of 23 June 2016, he suggested that there had been misinterpretation at the hearing before the Judge.  We cannot decide in the present application whether there was misinterpretation. We shall direct an investigation of that allegation by the relevant authority in the Judiciary.

13.  Even assuming that there had been misinterpretation at the hearing of 18 May 2016, in light of the fact that there had been an appeal which was dismissed after an oral hearing, if there were to be a judicial review the applicant should seek a review against the decision of the TCAB/NCPO of 22 January 2015 instead of the decision of the Director on 23 June 2014.  The application for judicial review in HCAL 205 of 2015 is therefore bound to fail.

14.  For these reasons, this court would not grant any extension of time to the applicant to pursue a hopeless appeal.

15.  The summons of 23 June 2016 is dismissed.