RE AQEEL ABBAS

CAMP 56/2018

[2018] HKCA 342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 56 OF 2018

(ON APPEAL FROM HCAL 637 OF 2017)

---------------------------

---------------------------

____________________

J U D G M E N T

____________________

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

1.  This is an application for extension of time to appeal against the Decision of High Court Judge Campbell-Moffat (“the Judge”) given on 17 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 3 March 2008 and was arrested by the police on 8 March 2008. On 20 March 2008, he lodged a non-refoulement torture claim.

2.  The Director of Immigration (“the Director”) decided against him on 28 November 2016.  The decision covered BOR 2, BOR 3, persecution risk and torture risk (“Director’s 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 8 September 2017 (Board’s Decision”).  The intended Judicial review was in respect of the decision of the Board. 

3.  We consider it is appropriate to determine the application without a hearing on the basis of the applicant’s written submissions only, pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap 4A.

Factual Background

4.  The applicant is single and came from the village of Thatta Musa in Pakistan.  He and his family were not affiliated with any political, social or religious group.  The applicant worked in a poultry shop from 2004 to 2008.  The applicant’s problems were, he said, due to one Choudary Kabir (“Kabir”), whom he said was a wealthy gangster who lives in the same village as he did. According to the applicant, Kabir was politically involved with the Pakistan Muslim League and had connections with policemen and government officials.  Kabir was a regular customer of the poultry shop, he bought meat on credit terms but failed to settle payment since about December 2007.  The applicant’s employer deducted the unpaid amount of about 4,000 Pakistani Rupees from the applicant’s wages.  The applicant thus refused to allow Kabir to buy meat on credit terms anymore that caused Kabir to assault the applicant with pistols, wooden sticks and choppers.  As a result, the applicant sustained severe injuries including an open wound on his head.  He sought medical treatment from a nearby clinic. It took several days for the applicant to recover from his injuries.

5.  The applicant went to file a complaint with the police.  The applicant believed the police had tried to arrest Kabir at his home but in vain.  Subsequently, Kabir, together with a few men, had gone to the applicant’s home and demanded the applicant to withdraw the case against him with the police and assaulted the applicant again. 

6.  The applicant fled to Lahore, Qasoor and Lalamusa all of which are about 4 hour’s drive from the applicant’s home.  He stayed in each of these places for short periods of time.  During these periods, Kabir kept approaching the applicant’s family to enquire as to the applicant’s whereabouts.  The applicant was under tremendous stress and decided to leave Pakistan to seek protection.

7.  The applicant claimed that relocation in Pakistan was not a viable option because Kabir could make use of his political connections and use his influence to instruct the police to track him down.  The applicant further claimed that if he were to seek a job in Pakistan, he would have to produce his Pakistan identity card which bears his name and address.  Such information would eventually be passed on to Kabir as he had well-established connections.

The Intended Judicial Review

8.  The applicant’s Form 86 filed on 25 September 2017 did not provide any ground for seeking relief.  In his affirmation of 25 September 2017, he just stated his fear of being killed if he returns to Pakistan. 

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, she gave the following reasons for refusing leave at [7] - [12] of the CALL-1 Form of 17 April 2018:

“Decision and further decision of the Director

7. The Director analysed the Applicant’s claim on all applicable grounds on three separate occasions as outlined above at a time when he was legally represented, although the only effective hearing appears to have been the last one. He considered a range of documentary evidence. He correctly set out the law, key legal principles and made reference to relevant materials. The Applicant was given every opportunity to state his case and to supplement the evidence before the Director. In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and succinct manner appropriate to the short facts relied upon. Given the nature, background and number of incidents relied upon, it is not a surprise that the Applicant was found not to have made out his case. The matter was clearly a private one with no evidence of state involvement.

Decision of the Adjudicator

8. The Adjudicator analysed the Applicant’s claim on all applicable grounds. He arranged for an oral hearing and treated the appeal as a rehearing. He correctly set out the law and key legal principles including the burden and standard of proof. He engaged the Applicant and tested his version of events which contained a number of inconsistencies but nevertheless gave the Applicant the benefit of the doubt where possible. The Adjudicator reasonably found that the Applicant had not established that his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion should he be returned to Pakistan, which is a Risk State. Even though he found there to be no risk to the Applicant, he nevertheless went on to consider the possibility of relocation, which he found to be a reasonable and viable option open to the Applicant if he were to be returned to Pakistan.

Leave to apply for judicial review

9. Judicial Review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his/her application in order to obtain leave to judicially review them.

Grounds of review

10. There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

11. Despite the Applicant failing to submit any grounds of review, I have considered the papers, grounds and submissions carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Quite the opposite is the case. Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately, giving him the benefit of the doubt where it was due. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

12. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial 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 and this expired on 2 May 2018 as 1 May 2018 was a holiday.  On 4 May 2018, the applicant took out the present summons seeking leave to appeal out of time.

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.  In this case, the applicant was late by 2 days.  In the affirmation filed on 4 May 2018, he sought to explain that since obtaining the decision in the CALL-1 Form, he had to wait for the reply from the Legal Aid Department if he would be granted legal assistance and he also needed time to obtain relevant documentation from his duty lawyer.  As the delay is not inordinate, we are prepared to accept the applicant’s reason for the delay.

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.  In the affirmation in support of his summons, he stated 2 grounds:

(i)  The Judge was wrong in law in holding that there was no state acquiescence or involvement.

(ii)  The Judge failed to provide detailed reasons in support of her decision.

14.  In his written submission filed on 25 May 2018, the applicant further complains:

(i)  The Director / the Board have failed to attain the “high standard of fairness” as set by the Court of Final Appeal in Sakthevel Prabakar v Secretary for Security [2004] 7 HKCFAR 187. 

(ii)  The decision-makers failed to attain the minimum standards of procedural fairness required in the decision-making process.

15.  In relation to the complaint that the Judge was wrong in law in holding that there was no state acquiescence or involvement, we see no basis for interfering with the Judge’s finding as set out in [8] of the CALL-1 Form that the applicant had not established that his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion should he be returned to Pakistan, and that internal relocation is a reasonable and viable option open to the applicant.

16.  In relation to the complaint that the Judge failed to provide detailed reason in support of her decision, we do not see any ground in this complaint.  The Judge had set out her views on the decisions made by the Director and the Board in [7] and [8] of the CALL-1 Form and explained the reasons for her findings in detail in [11] and [12].  We agree with the findings of the Judge and do not find any merit in this ground.

17.  In relation to the complaint that the Director / the Board have failed to attain the “high standard of fairness” and “procedural fairness”, we have reviewed and considered the decisions of the Director and the Board and have come to the view that the applicant’s case was duly considered and carefully determined.  Following the Court of Final Appeal’s ruling in Prabakar, the Director introduced the Unified Screening Mechanism (“USM”) on 3 March 2014 to determine non-refoulement and torture claims lodged by foreign claimants. We are satisfied that the procedures of the USM had been followed through in this case and the applicant was given every reasonable opportunity to establish his case: (i) he was given oral hearings before the Director and the Board; (ii) his claim was properly heard and assessed; (iii) the Director and the Board had taken into account the relevant COI, and given proper consideration to the applicant’s evidence of torture, the vulnerability of the applicant to torture if returned, and the applicant’s credibility.  In the circumstances, the applicant’s compliant on procedural irregularity / unfairness and the lack of high standard of fairness is not reasonably arguable.

18.  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.

19.  Further, determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court. There is no reasonable basis to challenge the decisions of the Director and the Board.  We agree with the Judge that leave to apply for judicial review should be refused.

20.  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 4 May 2018 is dismissed accordingly.

21.  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.