RE SIDDIQUE AAMIR

CAMP 167/2019

[2020] HKCA 47

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 167 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 37 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  By summons filed on 22 July 2019 and an affirmation filed on the same day, the applicant made a renewed application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 12 April 2019 refusing him leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by the Judge on 8 July 2019.

2.  The applicant was directed by the Registrar of Civil Appeals to lodge a written submission by 8 August 2019. Upon his application for an extension of time, the Registrar of Civil Appeals made an unless order on 9 August 2019 which provide that unless the applicant lodged his written submission by 27 August 2019, he shall be deemed to rely only on the representations he made in his affirmation.  On 22 August 2019, the applicant lodged with the court a bundle of documents comprising: (i) the present summons, (ii) his affirmation, and (iii) a two-page letter dated 22 August 2019 together with an abstract from country reports on human rights practices for 2015 prepared by the United States Department of State and four articles relating to land disputes in Pakistan downloaded from the Internet.  

3.  Although the applicant had not made it clear, it would appear that the two-page letter was his written submission.  We would take it into account, notwithstanding direction made by the Registrar of Civil Appeal on 27 August 2019 that the applicant shall be deemed to rely only on the representations made in his affirmation.

4.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons, the affirmation and the written submission put forward by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

5.  The applicant’s intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 24 May 2016 and 3 July 2017 rejecting his non-refoulement claim and the decision of the Torture Claims Appeal Board (“the Board”) dated 29 December 2017 dismissing his appeal against the Director’s decisions.

6.  The applicant is a Pakistani national.  He entered Hong Kong illegally and was arrested by the police on 8 January 2016. He made a non-refoulement claim based on his fear of being harmed or killed by his neighbour named Gujjar Riaz (“Riaz”) arising out of a land dispute.

7.  The applicant’s claim was detailed in the Director’s first decision at [6], and summarised by the Judge in [2] to [6] of the Form CALL-1 dated 12 April 2019[1]. The applicant’s case, in gist, is that since late 2014, Riaz had approached his family on several occasions demanding to purchase the farmland owned by his father.  When the demand was turned down, the applicant and his father were assaulted.  They dared not report to the police as Riaz was a wealthy and powerful landowner in the village and was associated with the political party, Pakistan Muslim League (N).  In December 2015, fearing for his personal safety, the applicant fled the country and went to mainland China from where he sneaked into Hong Kong.   

8.  By his two decisions, the Director rejected the applicant’s claim.  The first decision covers the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds, and the second decision covers the BOR 2 risk[5] ground.

9.  The applicant’s appeal to the Board was heard on 24 October 2017.  By its decision dated 29 December 2017, the Board dismissed the appeal.  Primarily, the Board did not find the applicant’s account credible.  The Board rejected his claim that he and his father had been assaulted by Riaz in connection with a land dispute, and concluded his fear of being harmed by Riaz was not substantiated.  The Board further found that, in any event, internal relocation was an option reasonably available to him.

10.  On 8 January 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  He raised the following grounds in support of the application:

(1) The Board had unlawfully fettered its discretion by refusing the applicant’s appeal for the reason that he failed to satisfy the requirements on all the applicable grounds.

(2) The Director failed to appreciate or give proper importance or weight to state acquiescence.

(3) The Director failed to take into account the argument that the applicant was tortured at the behest of and in collusion with the police, the state law enforcement agencies as well as those high up in the political circles. The state should be held liable for its failure to provide reasonable protection to its citizens.

(4) The Director failed to consider, or to give sufficient weight to, the relevant country of origin information (“COI”), and the inability of the Pakistani police to protect its citizens or was being biased against the applicant in failing to give sufficient weight to such COI.

(5) The Director failed to take into account that corruption and incompetency of the administration in Pakistan is still a serious problem.

(6) The Director failed to meet the high standard of fairness required by the Wednesbury test.

(7) The Board failed to make sufficient enquiry into the applicant’s claim before finalizing the determination or to give sufficient opportunity to the applicant to arrange relevant evidence to support his appeal.

11.  At the applicant’s request, the Judge listed the application for an oral hearing on 20 September 2018.  By his decision given on 12 April 2019, the Judge dismissed the application.  His reasons were set out in [13] to [16] of the Form CALL-1 as follows:

“13. These are however all very broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in the decision, or in what way did the Director fail to take into account of relevant COI or improperly rely on irrelevant COI, or how did the Director fail to attain high standard of fairness in his decision, or what relevancy was the presence of state acquiescence to his claim when there was never any evidence of any official involvement in GR’s threats or assaults or that he was ever tortured by the police. Some of these assertions were clearly factually incorrect, while none were elaborated or presented with any particulars or specifics by the applicant.

14. As for his complaint of not being given sufficient opportunity by the adjudicator to provide relevant evidence in support of his claim or for his appeal, of which he never raised any issue during his oral hearing before the Board nor did he make any request to the adjudicator for further time for him to do so. Even now in his application before me he did not make any further representation or produce any further evidence in support of his claim. In the premises I do not find any merit in this complaint of the applicant either.

15. The fact is that it has been established by both the Director and the Board in their decisions that state and police protection would be available to the applicant in what was essentially a private property dispute with no official involvement at all, and that risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.”

12.  The 14-day period for the applicant to appeal the decision of the Judge, as stipulated by Order 53, rule 3(4) of the Rules of the High Court,expired on 26 April 2019.  On 29 April 2019, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  The Judge heard the application on 30 May 2019, and by his decision handed down on 8 July 2019[6] dismissed the application.  On 22 July 2019, the applicant filed the present summons and the supporting affirmation in this Court to renew his application for leave to appeal out of time.

13.  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 success 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). 

14.  The applicant was late by three days, which is a short delay.  The Judge also considered the delay insignificant.  He, however, considered it was futile to extend the time for appeal since the applicant had provided no ground for his intended appeal.  

15.  In the present application, the applicant again did not set out any ground for his intended appeal in both the summons and the affirmation.  In his letter dated 22 August 2019, which we take as his written submission, the applicant said his life would be in danger if he were to return to Pakistan.  Contrary to the case he previously put forward before the Director and the Board, he said that a report had been made to the police about the assault on him and his father, but the police took no action.  He also complained that the Director did not consider his case on humanitarian grounds.  He explained that the materials enclosed with his letter revealed a few real stories on the situation in Pakistan.  

16.  We are of the view that the matters stated in the letter/ written submission do not amount to viable grounds of appeal.  Importantly, the Board doubted the veracity of the applicant’s case and did not accept he had been assaulted by Riaz and concluded that his fear of being harmed by Riaz was not substantiated.  In the circumstances, what he put forward in the letter/written submission has no relevance at all.  Further, this Court had repeatedly held[7] that the Director and the Board are the primary decision makers, and the Court in a judicial review will not usurp their role, and will only intervene if there are errors of law or procedural unfairness or irrationality in the Board’s decision.  The Judge had rejected the applicant’s complaints about the Director’s and the Board’s decisions.  The applicant has not advanced any complaint against the Judge’s decision and reasons.     

17.  For the reasons set out above, we consider the intended appeal has no prospect of success.  This being the case, it would be futile to give leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons filed on 22 July 2019.

18.  As the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.