Re Khan Wasiq

CACV 300/2018

[2018] HKCA 689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 300 OF 2018

(ON APPEAL FROM HCAL 1054/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.This is the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 29 June 2018 refusing leave to the applicant to apply for judicial review.

Background

2.The applicant is a national of Pakistan.  He arrived in Hong Kong from the Mainland China on 24 August 2011.  On 25 August 2011, the Director of Immigration (“the Director”) refused to grant him permission to land.  The applicant then lodged a torture claim[1], which was subsequently rejected by the Director on 15 March 2012.  He elected not to appeal against this decision of the Director.  After the commencement of the unified screening mechanism, the applicant lodged another claim for non-refoulement protection in June 2014.  The claims were based on fear of attack for the applicant’s customers after their motor bikes placed at his store were stolen. 

3.The facts related to the applicant’s claims were set out by the Judge in the CALL-1 Form at [2018] HKCFI 1435 at [1] to [3]. 

4.Since the applicant’s torture claim had already been rejected by the Director, the assessment of his non-refoulement claim was only based on the BOR 3 risk[2] and the persecution risk[3]. By a notice of decision dated 1 April 2015 (“the Director’s First Decision”), the Director determined the said risks against the applicant.

5.The applicant petitioned to an adjudicator of the Non-refoulement Claims Petition Office (“the Adjudicator”) against the Director’s First Decision.  Although an oral hearing was scheduled to be held on 8 March 2016, the applicant failed to attend the hearing.  The Adjudicator dismissed the petition on 21 April 2017 (“the Adjudicator’s First Decision”). 

6.By a letter dated 25 April 2017, the applicant was invited to submit additional facts in respect of his BOR 2 risk[4].  The applicant submitted two letters (one dated 27 April 2017 and the other undated) for the Director’s consideration. It was stated in the letters that the applicant’s enemies were still harassing his family and looking for his whereabouts.  By a notice of further decision dated 10 May 2017 (“the Director’s Second Decision”), the Director determined that the applicant failed to establish his claim under the BOR 2 risk.

7.The applicant petitioned to the Adjudicator against the Director’s Second Decision.  An oral hearing was held on 20 November 2017.  In the hearing, the applicant told the Adjudicator that his customers were still looking for him in February 2012 and he was still under threat from them.  After hearing the applicant, the Adjudicator found that the applicant failed to establish a claim based on the BOR 2 risk which justified a non-refoulement protection.  The Adjudicator dismissed the petition on 1 December 2017 (“the Adjudicator’s Second Decision”).

The Judge’s decision

8.The applicant filed a form 86 on 12 December 2017.  The applicant advanced the following grounds for seeking relief in the form 86:

(a)   Against the Adjudicator’s First Decision that the adjudicator failed to examine or give sufficient weight to the extended concept of state acquiescence, and failed to put weight on the evidence suggesting the inefficiency, ineffectiveness and corruption in the Pakistani police, as well as the violation of human rights in Pakistan;

(b)   Against the Director’s Second Decision that the Director failed to take into account the fact that the applicant was not legally represented; and

(c)   Against the Adjudicator’s Second Decision that the Adjudicator failed to apply the high standard of fairness and to make sufficient enquiry into the threats against the applicant and whether the applicant suffered any mental injuries.

9.After hearing the applicant on 25 May 2018, the judge decided on 29 June 2018 that leave should not be granted to the applicant to apply for judicial review.  His reasons in refusing to grant leave are set out in [11] to [15] of the CALL-1 form.

The appeal

10.In the notice of appeal filed by the applicant on 9 July 2018, the applicant advanced the following grounds of appeal:

“ 1. The learned Judge has erred in law, fact and logic in concluding that there was no need for either the Director of Immigration or the Adjudicator to consider the presence of the State Acquiescence.

2. The learned Judge erred in finding that there was State protection available despite the fact that the alternative avenues to seek justice in Pakistan are mere speculation.

3. The learned Judge erred in concluding that there was procedural fairness despite that I was not legally represented during the hearing.”

11.In the applicant’s skeleton submissions of 20 August 2018, he stated for the first time that he had reported the incident to the police but the police had neither attempted to investigate nor update the applicant on the result of the investigation.  The applicant contended that the Pakistani government had been in breach of its duty of due diligence in failing to provide an effective criminal system to protect its citizens.  The applicant also referred to a number of authorities in support of his appeal.

12.We heard the appeal on 20 September 2018.

Discussion

13.In Re Moshsin Ali [2018] HKCA 549, the Court held that the decision of the Director is not susceptible to judicial review once an appeal to the Torture Claims Appeal Board (and/or petition to an adjudicator of the Non-refoulement Claims Petition Office, as the case may be) is pursued by a non-refoulement claimant.  Since the applicant had already petitioned to the Adjudicator against the Director’s decisions, the court would focus on the decisions of the Adjudicator in the application for judicial review. 

14.Furthermore, the applicant failed to bring judicial review against the Adjudicator’s First Decision within the 3-month time limit stipulated under Order 53, rule 4(1) of the Rules of the High Courts (Cap 4A). Without any application for an extension of time, that part of the judicial review relating to the Adjudicator’s First Decision should be dismissed on the ground of delay: see Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419 at [29]; and Re Rafaqat Ali [2018] HKCA 440 at [19].

15.Also, as held in Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, the applicant has to obtain leave before he could bring an appeal for refusal to extend time.  He has not done so.  Thus the appeal against the Adjudicator’s First Decision is incompetent.

16.The applicant cannot advance new evidence in an appeal without leave.  The assertions in his submissions are unsupported by evidence and contradicted by his evidence before the Director and the Adjudicator that he had decided against making any report to the police.  We reject his attempt to introduce new evidence at this late stage.

17.In an appeal, this Court focuses on examining the correctness of the Judge’s refusal of leave in light of the grounds of appeal in the notice of appeal, see Re Shrestha Santosh Kumar [2018] HKCA 583, [17(f)].

18.Assessment of state protection and state acquiescence is within the province of the Adjudicator, and the court will not interfere with the assessment unless the applicant can establish any public law error in it: see Re Zunariyah [2018] HKCA 14 at [22]; Re Lakhwinder Singh [2018] HKCA 246 at [13]; and Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  In the absence of any public law error on the part of the Adjudicator, there is no basis for the court to intervene with these findings. In this respect, the applicant did not advance any public law ground.

19.As held in Re Esmerez Maria Gelito [2018] HKCA 611, there is a high threshold for the application of the concept of state acquiescence.  The applicant’s evidence comes nowhere near this threshold.

20.The first two grounds of appeal are totally devoid of merit.

21.Regarding the third ground of appeal concerning the lack of legal representation, high standards of fairness do not prescribe that a non-refoulement claimant has an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37.  On the facts of the present case, the applicant did not pinpoint any specific matter which gives rise to unfairness to him due to his lack of legal representation before the Adjudicator.

22.Having considered the materials before us, we agree with the Judge’s conclusion that leave to apply for judicial review should not be granted in respect of the Adjudicator’s Second Decision.

23.For these reasons, we dismiss the appeal.

The applicant appearing in person