RE ZAID IQBAL

CAMP 64/2018

[2018] HKCA 412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 64 OF 2018

(ON APPEAL FROM HCAL 648 OF 2017)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the Decision of Deputy High Court Judge Josiah Lam (“the judge”) given on 25 April 2018 refusing leave to the applicant to apply for judicial review. The applicant is a Pakistani national. He entered Hong Kong illegally from China on 15 November 2013 and was arrested by the police on 27 November 2013. On 1 December 2013, he lodged a non-refoulement torture claim.

2.  The Director of Immigration (“the Director”) decided against him on 29 March 2016.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director’s Decision”).  By a further decision of 25 January 2017 the Director dismissed the applicant’s claim based on BOR 2 risk (“Further Decision”).  The applicant appealed the Director’s Decision to the Torture Claims Appeal Board (“the Board”) and after hearing, the Board dismissed the appeal on all four applicable grounds on 22 August 2017 (Board’s Decision”).  The intended Judicial review was in respect of the decision of the Board. 

3.  Despite the directions given by the Registrar (Civil Appeals), the applicant has not filed any written submissions.  In the circumstances, we will deal with the application on the basis of the summons and affirmation filed in support. Having considered the matter, we take the view that the application can be properly disposed of without an oral hearing pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap 4A.  We now hand down our judgment.

Factual Background

4.  The applicant’s case is based on his fear that if he were to return to Pakistan, he would be killed by the Taliban or arrested by the Pakistani police over a case of resistance of police arrest by a suspected Taliban member in which the applicant was involved.  The applicant’s case in gist is that he is a Muslim, married with four daughters, who came from Sirka Tehsil, Punjab in Pakistan. He and his family were not affiliated with any political, social or religious group.  In June 2010, he moved to Karachi from Sirka alone to start a cosmetics business.  During the journey, the applicant came to know and made acquaintance of a passenger named Hakeemullah.  The applicant knew nothing about Hakeemullah except that he was a businessman living in Karachi.  The applicant kept in phone contact with him while in Karachi but they rarely met each other.

5.  In or about February or March 2012, Hakeemullah requested to stay at the applicant’s place for short period of time because he had some problems with his residence and the applicant agreed.  About six to seven days later, four police officers approached Hakeemullah and attempted to arrest him when he came out from a mosque with the applicant.  Hakeemullah was shot dead when he resisted the arrest.  The applicant was shocked to learn from the police that Hakeemullah was from the Taliban.   

6.  The police suspected the applicant was also a member of the Taliban and detained him for investigation and searched his home.  However, the police did nothing to the applicant during the investigation and later released him.  The applicant also received calls from an unknown person who claimed to be from the Taliban threatening to kill him as the Taliban considered him an informer, who caused the death of Hakeemullah.  

7.  The applicant did not report the matter to the police as he thought the police must have suspected that he was a member of the Taliban.  The applicant did not feel safe living in his village as both the Taliban and the Pakistani police were after him.  He considered internal relocation was not possible due to the same reason.  The applicant decided to leave Pakistan to seek protection.   

The Intended Judicial Review

8.  The applicant’s Form 86 filed on 20 September 2017 did not provide any ground for seeking relief.  In his affirmation of 20 September 2017, he just exhibited the Board’s decision and a 15-page statement which is a compilation of disjointed excerpts/statements/information/Bill of Rights provisions in repetition.  It is convenient to sum it up as the applicant’s yearning for justice and fair assessment of his non-refoulement claim. 

9.  After reviewing the materials carefully, the judge refused to grant leave.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, he gave the following reasons for refusing leave at [23] - [34] of the CALL-1 Form of 25 April 2018:

“Grounds for judicial review

23. The Applicant has these complaints:

(a) There was no reasonable basis for the Adjudicator to find him incredible.

(b) The Adjudicator failed to consider extended state acquiescence.

(c) The Adjudicator failed to consider Country-of-Origin Information (‘COI’) fully.

(d) The decision-maker was a different person from the interviewing officer.

(e) There was no proper basis for the decision-maker’s consideration of internal relocation.

Discussion

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

25. 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’.[1]

Ground (d)

26. The Adjudicator Mr. Ronald CHEUNG interviewed the Applicant on 8 February 2017 during the Board hearing. The same Adjudicator rendered the appeal decision on 22 August 2017.

27. The immigration officer who rendered the Director’s decision on 29 March 2016 was the same officer interviewing the Applicant on 27 January 2016. She was Ms LEE Yuen Yee.

28. The immigration officer who rendered the Director’s further decision on 25 January 2017 was named CHOI Fei-yin. This officer decided the Applicant’s claim only on the fourth applicable ground (BOR2 risk) after the Applicant had failed to submit additional facts for consideration. The officer did not have an interview with the Applicant but decided on the BOR2 issue on all the information before him. It was proper for the officer to do so as the Applicant had not submitted additional facts in respect of the fourth applicable ground. The officer was entitled to rely on all the information already before the Director to come to his decision. Ground (d) fails.

Ground (a)

29. The Adjudicator considered the Applicant’s case in depth. He noticed there were a number of inconsistencies or implausible allegations his evidence. He found the Applicant’s claim was not genuine and rejected it in relation to all the four applicable grounds. The Adjudicator had proper basis for his findings and conclusions, which were not Wednesbury unreasonable. The same can be said of the Director’s decisions. Ground (a) fails.

Ground (e)

30. Despite having rejected the Applicant’s story, the Adjudicator went on to discuss the issue of internal relocation (assuming there was any claimed risk). He referred to available COI and came to the conclusion that reasonable internal relocation was available to the Applicant. The Adjudicator’s conclusion was based on apparently reliable information. Again, the same can be said of the Director’s decisions. The Applicant failed to identify what was incorrect in the information or the conclusions. Ground (e) fails.

Ground (c)

31. This ground also lacked specifics. The Applicant failed to point out what COI could assist his claim and how. There is no substance in Ground (c), which must fail.

Ground (b)

32. The Adjudicator was conversant with the law relating to state acquiescence. Though he did not devote time to discuss that, it is apparent from his findings against the Applicant that there was no state acquiescence. In fact, there were no risks as the Applicant claimed. Ground (b) also fails.

Conclusion

33. In my judgement, both the Director and the Adjudicator had proper basis for their individual findings and conclusions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaint against the Director or the Adjudicator. Each had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed that they were acquainted with the facts and the law. They were entitled to render those findings, conclusions and decisions as they did and those findings/ conclusions/ decisions were all reasonable. The Director and the Board had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

34. The Applicant's complaint is not reasonably arguable either against the Director or the Board. He has no reasonable prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

Discussion

10.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal against the judge’s refusal of leave to apply for judicial review.  He failed to do so.  On 15 May 2018, the applicant took out the present summons seeking leave to appeal out of time. His application was supported by an affirmation.  In the affirmation, he alleged that he only received the court document on 14 May 2018.  

11.  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 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). 

12.  The delay in the present case is a short one.  Notwithstanding this, the arguability of the intended appeal is an important consideration in an application for extension of time, 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.  The crucial consideration in this application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review.

13.  We now turn to assess the prospect of the applicant’s intended appeal against the judge’s decision.  The applicant did not include any draft notice of appeal in his documents filed with the court. He only set out a brief reason for delay in his summons and affirmation in support and made a complaint that there is no reason for the judge to reject his application only on documents. 

14.  The judge has duly explained in [13] and [14] of the CALL-1 Form that the applicant did not request for a hearing in Form 86 nor had he stated such a wish in his affirmation/statement. Pursuant to Order 53, rule 3 of the Rules of the High Court, the judge rightly proceeded to determine the application for leave on consideration of documents only without a hearing.  The applicant’s complaint is devoid of merit.

15.  After reviewing the materials placed before the judge, we agree with the judge that the applicant’s claims are not reasonably arguable and the intended judicial review has no prospect of success.

16.  Having read the full decision of the Board, we take the view that it was perfectly open to the Board to come to its conclusion on the lack of real risk.  It is plain and clear that the applicant’s case of risk of harm had been carefully considered and justifiably rejected.  As this court has repeatedly observed, although the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the primary decision-maker is still the Board. Determination of merits of the case is primarily a matter for the Board, whose role will not be usurped by the court. See:  Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163. 

17.  In our view, both the Director and the Board had fully reviewed the applicant’s case.  We are satisfied that the findings of the Board and the observations of the judge are supported by evidence and justified.  We agree with the judge’s view that there was no error of law or procedure, nor any evidence of procedural unfairness, nor a failure to adhere to a high standard of fairness.

18.  For these reasons we do not see any prospect of success in the intended appeal.  We would not grant extension of time for a hopeless appeal, and the summons of 15 May 2018 is dismissed accordingly.

19.  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 that this determination be reconsidered at an oral hearing.