RE ZUBAIR MUHAMMAD

CAMP 76/2018

[2018] HKCA 545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 76 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 385 of 2017)

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JUDGMENT

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

1.  By summons filed on 28 May 2018, the applicant seeks leave to appeal out of time against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 5 March 2018 refusing him leave to apply for judicial review. The applicant’s intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 21 January 2016 and 8 May 2017 rejecting his non-refoulement claim and the decision of the Torture Claims Appeal Board (“the Board”) dated 2 June 2017 dismissing his appeal against the Director’s decisions.

2.  Having considered the papers, we are of the view that it is appropriate to determine the application on paper without a hearing pursuant to Order 59 rule 2A and rule 14A(1) of the Rules of the High Court, Cap. 4A.

3.  The applicant is a Pakistani national. He entered Hong Kong illegally and was arrested by the police on 8 December 2013.  On 11 December 2013, he lodged a non-refoulement protection claim based on his fear of being harmed and killed by terrorists from the Federally Administered Tribal Areas (“FATA”)[1] because he had reported them to the police for kidnapping him.

4.  The applicant’s case in gist is that in September 2007, he was kidnapped by a group of terrorists from FATA and kept in custody for 53 days.  During the time, he was chained and locked up in a small cubicle, and was beaten with wooden gun handles and bare fists for the first four or five nights.  After some negotiations, his cousin paid a ransom of 1.2 million rupees after which the applicant was released.  A report of the kidnap was made to the police, and two kidnappers were arrested in January 2010.  They were tried in the Anti-Terrorism Court for kidnapping the applicant and another man, during which the applicant had testified against them. In June or July 2010, they were convicted and sentenced to life imprisonment.  In the meantime, the kidnappers’ family reached a settlement with the applicant’s cousin, whereby the ransom money would be returned. In return, the applicant was to withdraw his complaint, in consequence whereof the kidnappers’ sentence would not be enforced. The applicant reluctantly accepted the settlement because he was warned by the police that FATA terrorists were dangerous and could harm him if he did not compromise.  One day in mid-2012, there was another attempt to kidnap the applicant when he was driving his car, but he managed to escape.  After this, he began to receive threating phone calls which he believed were made by the FATA terrorists.  Fearing for his personal safety, the applicant left for Guangzhou via Bangkok and eventually came to Hong Kong. 

5.  By a Notice of Decision dated 21 January 2016 and a Notice of Further Decision dated 8 May 2017, the Director rejected the applicant’s claim, having considered, in the first decision, torture risk[2], BOR 3 risk[3] and persecution risk[4], and in the further decision the BOR 2 risk[5].

6.  The applicant appealed to the Board. An oral hearing was held on 22 May 2017.  The account given by the applicant to the Board was set out in [4] to [33] of the Board’s decision dated 2 June 2017. For reasons given in [54] to [86] of its decision, the Board did not accept the applicant’s claim as credible. The Board was not satisfied there were substantial grounds for believing the applicant would be in danger of being subjected to torture, or ill-treatment involving a breach of BOR 3 or BOR 2, or persecution whether for reason of any of the Convention grounds or for any other reason. The Board therefore dismissed the appeal.   

7.  The applicant Filed his Form 86 on 11 July 2017 and requested an oral hearing.  An oral hearing was fixed for 2 November 2017.  Despite being served with the notice of hearing[6], the applicant was absent at the hearing. The Judge therefore proceeded to deal with his application on the basis of the materials he had filed with the court.

8.  In his Form 86, the applicant advanced the following grounds in support of his application to judicially review the decision of the Board:   

(1)   Against the decisions of the Director:

(a)   Failure to consider the concept of extended acquiescence.

(b)   The Director’s conclusion that the Pakistan government had taken steps to combat the activities of the FATA terrorists is mere speculation.  The terrorists’ activities in fact went up in 2016 and 2017 according to research report.

(c)   Contrary to what was quoted in the Director’s decision, the corruption and incompetency of Pakistan police remain serious, according to an online document.

(d)   Failure to advise the applicant to obtain medical report and/or evidence from the Pakistan authorities when assessing the BOR 2 risk. 

(2)   Against the Board:

(a)   Failure to examine or give sufficient weight to the extended concept of state acquiescence.

(b)   The Board’s conclusion that the Pakistan government had taken practical steps to improve the effectiveness of its police force to protect citizens was mere speculation, in light of the online document.

(c)   Failure to attain the high standards of fairness as the applicant was not legally represented. 

(d)   Failure to make sufficient enquiry before finalizing its decision in that the applicant should be advised to obtain medical reports and/or evidence from Pakistan authorities, which are relevant to the assessment of whether the violence was of sufficient severity to come within the definition of torture under the Convention.

8.   The Judge refused to grant leave to apply for judicial review for the reasons given in [19] to [24] of the Form CALL-1 dated 5 March 2018:

“19.   The applicant has sought to judicial review the decisions of both the Director of Immigration and the adjudicator of the TCAB.  However, in my view, this is not the right course of action to take.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or a rehearing.  There is now no room for a judicial review of the Director’s decision for any reason I can see.  I have considered the grounds of his application against the decision of the TCAB only.

20.   I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the decision to be without fault. The adjudicator analysed the material, claims and evidence carefully, logically and with caution. The applicant’s complaints in the affirmation against him and the procedures undertaken are not made out. I find no substance in the grounds of this application.

21.   In his affirmation, the applicant submits the adjudicator has failed to examine and give sufficient weight to the extended concept of State acquiescence. The adjudicator did not find the applicant a genuine claimant because he did not find his evidence credible. In addition, the applicant did not rely on the extended concept of state acquiescence. The decision-makers did not need to consider this concept. The applicant did make a police report and the police did arrest two of his kidnappers and prosecute them. It was the applicant who negotiated a settlement with them after trial. This is not a case where the State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons. I find no substance in this ground.

22.   The applicant also submits that the adjudicator’s finding that the government has taken steps to improve the effectiveness of the police force is unreasonable and purely speculative. He refers to a human rights watch publication from September 2016 that outlines human rights abuses carried out by the police. The adjudicator does acknowledge that there is corruption that the government is trying to address. What is more pertinent in this case is that the police have not been accused of acting corruptly to the detriment or prejudice of the applicant; in fact, quite the opposite. There is no merit in this ground.

23.   I see no merit in the ground that accuses the adjudicator of failing to attain a high standard of fairness required, in particular as the applicant was not legally represented. I also see no merit in the ground that accuses the adjudicator of failing to advise the applicant to obtain medical reports. This was not raised as part of the applicant’s case nor was it obvious that medical reports would have assisted the applicant or the adjudicator.

24.   I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.”

9.  The applicant had 14 days to appeal against the Judge’s decision which expired on 19 March 2018[7].  On 28 May 2018, the applicant took out the present summons seeking leave to appeal out of time.

10.  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). 

11.  In this case, the applicant was late by more than two months.  The delay is not insubstantial. The applicant explained in his affirmation filed on 28 May 2018 that he received the court’s letter late.  It would appear from the exhibit to his affirmation that after he received the CALL-1 Form, he wrote to the Judge asking to extend his stay in Hong Kong as his family was negotiating with his enemies.  The court replied by letter dated 4 May 2018 informing him that the application had been concluded and the Judge no longer had jurisdiction to deal with this matter.  Although the applicant had not elaborated on why he received the letter late and when he actually received it, we are prepared to accept his explanation.

12.  We turn to assess the prospect of success 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. 

13.  The applicant has not filed any written submission in support of his present application.  This is notwithstanding the directions given on 26 June 2018 by the Registrar of Civil Appeals requiring him to file written submission by 12 July 2018, and warning him that if he failed to do so, his application will be determined on the basis of the summons and affirmation he had filed.

14.  Neither the applicant’s summons nor his affirmation has set out any grounds to support his intended appeal.  He merely stated in the summons that he could not go back to Pakistan because his life would be in danger there.  In the circumstances, there is no basis for this Court to interfere with the Judge’s conclusion that the intended judicial review is not reasonably arguable and has no realistic prospect of success. 

15.  It follows that 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.

16.  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.