AHMED SHERAZ v. DIRECTOR OF IMMIGRATION AND ANOTHER

CAMP 17/2018

[2018] HKCA 256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 17 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO 347 OF 2017)

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J U D G M E N T

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

INTRODUCTION

1.  This is an application for extension of time to appeal against the Decision of High Court Judge Toh (“the Judge”) given on 19 January 2018 refusing leave to the applicant to apply for judicial review.   The applicant is a Pakistani national.  He entered Hong Kong illegally on 18 December 2013 and was arrested by the police the next day. On 21 December 2013, he lodged a non-refoulement torture claim.  The Director of Immigration (the “Director”) decided against him on 19 May 2016.  By another decision made by the Director on 28 March 2017, reject his claim under BOR2 Risk was also rejected.[1] The applicant appealed the two decisions to the Torture Claims Appeal Board (“the Board”).  After hearing, the Board dismissed the appeal on 22 June 2017.  The Board rejected the non-refoulement claims (“NRC”) of the applicant on all applicable grounds namely torture risk,^[2] BOR 2 risk, BOR 3 risk^[3] and persecution risk.^[4]  The applicant then applied for judicial review against the Board’s decision.

2.  We consider it 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

3.  The applicant has been a supporter and actively participated in an independent political party called Azad in his home country. The applicant’s claim is based on his fear that if he were to return to Pakistan, he would be subjected to ill-treatment or punishment or even killed by people of another political party, namely the Pakistan People’s Party (“PPP”), as a result of a dispute between the two camps during a local election in 2010, in which the applicant also participated.   The applicant alleged that two to three months after the election, he was bumped by a motorbike driven by one Rab, the son of a very influential supporter of the PPP.  As a result, the applicant suffered a leg injury, but he managed to run away, making good his escape.

4.  The applicant did not report the incident to the police because he knew the PPP had a good relationship with the police.  Worrying about his personal safety, the applicant went into hiding after his friends told him that Rab was trying to locate him and kill him. He left his home and hid for about 2 years in Rawalpindi (82.6 km from his hometown Mirpur).  Nothing happened to him but he was told by his family that people of the PPP were still looking for him.

5.  On a day in mid-2013, the applicant spotted 3 people of the PPP in Rawalpindi, and thought his whereabouts had been exposed.   He therefore decided to leave Pakistan for China.  He claimed that relocation in Pakistan was not a viable option because the powerful PPP could easily track him down.  The applicant further claimed that after he came to Hong Kong, his family told him that the PPP people were still looking for him.

The Intended Judicial Review

6.  The applicant’s Form 86 filed on 30 June 2017 did not provide any ground for seeking relief.  In his affirmation of 30 June 2017, he stated that he was not satisfied with the decisions made by the Director and the Board and the Director had not taken into account of all the facts when considering his case.

7.  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 decision of the Board, she gave the following reasons for refusing leave at [5] - [9] of the CALL-1 Form of 19 January 2018 :

“5.  The Adjudicator considered the Country of Origin Information (“COI”) available before him and also the law pertaining to the various claims lodged by the applicant and at the end of the day, the Adjudicator accepted that the applicant’s evidence was generally true and reliable though there was no corroborative evidence to support.  The Adjudicator found that no substantial grounds exist of believing that the applicant would be in danger of being subjected to torture upon his return nor had the applicant established any real risk of that.

6.  As for the BOR 3 risk, the Adjudicator having read the COI before him found that there was no consistent pattern of gross, flagrant or massive violations of human rights in Pakistan. PPP is no longer the dominating party and it is open to the applicant to internally relocate in Pakistan if he fears the PPP.

7.  As for the persecution risk, the Adjudicator found that the applicant has been unable to establish a well‑founded fear of persecution.

8.  Finally, as to the BOR 2 risk, the Adjudicator found that the applicant had also failed to establish any risk of life.  So taking into account all the above matters, the Adjudicator dismissed the appeal from the Director and confirmed it.

9.  I find that the applicant had failed to demonstrate any reasonably arguable grounds to meet the test in Peter Po Fun Chan v Winnie C W Cheung and another (2007) 10 HKCFAR 676, paragraph 14‑17.  Therefore, the application for leave to apply for judicial review is refused.”

Discussion

8.  Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal against the Judge’s refusal of leave to apply for judicial review and it was expired on 2 February 2018.  On 20 February 2018, the applicant took out the present summons seeking leave to appeal out of time.

9.  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 prospects of the intended appeal; and (4) the prejudice to the respondent if extension of time were 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).

10.  In this case, the applicant was late by 19 days.  His application was supported by affirmation. In the affirmation, he sought to explain that the order dated 19 January 2018 was only received by him on 8 February 2018.  He produced an envelope from the Judiciary showing the General Post Office did not stamp on the envelope until 6 February 2018, which he claimed to have received on 8 February 2018. However, the applicant did not explain why he did not take any action until 20 February 2018.  Even if this Court accepts the order only reached the applicant on 8 February 2018, there was a lapse of 12 days before the applicant took out the present summons seeking an extension of time.

11.  In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Wong Yuk Man v Ng Leung Sing HCMP 3217 of 2015, 22 January 2016.  The same principle applies in non-refoulement cases: see Re Akram Mohammad HCMP 1601 of 2016, 10 August 2016; Re Khandakar Ali Muzaman HCMP 2452 of 2016, 22 November 2016.

12.  We therefore turn to examine 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.  The written submission filed on 9 March 2018 just repeated the reason for delay in taking out summons for leave to appeal without any grounds of appeal.  We will take his grounds of appeal as being, as stated in his affirmation of 30 June 2017, that he was not satisfied with the decisions made by the Director and the Board and that the Director had not taken into account of all the facts when considering his case as mentioned in [6] of the Judgment.

13.  We have reviewed and considered the decisions made by the Director and the Board and come to the view that the applicant’s case was duly considered and carefully determined.

14.  In the decision dated 19 May 2016, the Director at [5] and [6] set out the factual basis of the applicant’s claim.  Based on the asserted primary facts, the Director explained his consideration and reasons for his refusal of the claim under each applicable ground of claim.   In gist, despite the Director accepting the story of the applicant, given the applicant only suffered one attack, and considering the mode of attack, the nature and extent of the injury and the fact that the applicant was able to stay in his country for a few more years without encountering any problem from any PPP supporters before he left Pakistan, the Director found that the applicant’s case did not warrant non-refoulement protection under any of the applicable grounds.  Further, in coming to the view that state protection is available, the Director had assessed the relevant Country of Origin Information (“COI”) and came to the view that the Pakistani government has and will exercise due diligence to provide state protection to the applicant.

15.  The adjudicator adopted a similar structure of assessment in reviewing the applicant’s case and reiterated that :

“ 18. The task of the Board is to assess if there is any real risk under the different applicable grounds were the Appellant be expelled, and it should accord the Appellant with high standard of fairness. Finding of gross violations of human rights by the state is insufficient, the risk must be personal.”

16.  Having taking into account of all evidence from the applicant, including oral evidence given in the appeal hearing, the Board found that the applicant was unable to establish a real likelihood of risk pertinent to any of the applicable grounds under his NRC.

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 fully justified.  We agree with the Judge’s view that the applicant had failed to demonstrate any reasonably arguable grounds to meet the minimum level of severity for invocation of non-refoulement protection.

18.  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.

19.  For these reasons we do not see any prospect of success in the intended appeal.  We therefore would not grant an extension of time and the summons of 20 February 2018 is dismissed accordingly.

20.  Since the 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.