Re Allah Rakha

CAMP 160/2020

[2022] HKCA 369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 160 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 821 OF 2018)

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J U D G M E N T

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

1.On 22 August 2019, DHCJ Josiah Lam (“Deputy Judge Lam”) refused to give the applicant leave to apply for judicial review proceedings concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. Excluding the summer vacation, the deadline was therefore 14 September 2019.

2.The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 20 September 2019 for extension of time to appeal (which was late by 6 days).  That summons was dismissed by DHCJ K.W. Lung (“Deputy Judge Lung”) 26 June 2020. 

3.On 11 September 2020, the applicant filed his summons in CAMP 160/2020 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  In compliance with the directions made by the Registrar of Civil Appeals on 28 December 2020, the applicant filed his written submissions on 12 January 2021.

Background

5.The brief background is as follows.  The applicant is a national of Pakistan.  He claimed that he had worked in different logistics companies in Pakistan and became a franchise owner in the business in 2010.  In late 2012 or early 2013, an unknown person came to his office for shipping service.  The applicant was later informed by his district manager that the consignment contained dangerous drugs.  The applicant was investigated and made a statement to the police.  A few months later, the customer approached the applicant and asked him to change his statement but he refused.  The customer threatened to kill him and it was subsequently found out that the customer belonged to a notorious mafia group in Karachi.  Six week later, the customer approached the applicant again with a pistol and threatened to kill him if he did not change his evidence.   The applicant did not think the Pakistan authorities would help him and worrying about his safety, he left Pakistan for China on 6 August 2013 and sneaked into Hong Kong on 4 February 2014.  The applicant was arrested by the police on 27 February 2014. 

6.On 1 March 2014, the applicant raised a non-refoulement claim on the basis that if he were to return to Pakistan, he would be harmed or even killed by the drug dealer unless he changed his witness statement to the police about the consignment.

7.By a Notice of Decision dated 26 April 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (collectively called “the Board”).  He attended an oral hearing on 7 March 2018 and by its decision dated 25 April 2018, the Board dismissed the appeal and confirmed the Director’s decision.  Although the Board found a number of unconvincing features in the applicant’s case, it was prepared to accept that the applicant had worked in the shipping business and, as a witness to a drug trafficking crime, came under pressure from a criminal gang.[5]  However, the Board found that the applicant did not make sufficient effort to seek help from the Pakistani police / Anti-Narcotic Force and chose to leave Pakistan and his family in his own belief that the authorities would not render assistance or protect him.[6] Further, the applicant did not suffer any physical harm from the gangster with the consent or acquiescence, active or passive, of a public officer/ the government that would qualify him for non-refoulement protection.  In any event, internal relocation is a reasonable and viable option.[7]  For the aforesaid reasons, his claim was accordingly dismissed by the Board.  

Application for leave to start judicial review

9.On 11 May 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and the Board’s decisions.  As held in Re Moshin Ali [2018] HKCA 549, the decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued and as the Director’s decision has been superseded by the Board’s decision, the Judge had rightly decided only to deal with the grounds against the Board’s decision and they are as duly summarized by Judge Lam in [30] – [32] of the JR Decision as follows:

(1)     There was no legal and language assistance after the Director’s decision.

(2)     The appeal bundle was only served on him shortly before the Board’s hearing and there was a lack of translation of its contents.

(3)     It was wrong for the Adjudicator to find that he was an educated man and could have taken his case to the higher authorities in Pakistan.  In fact, he could hardly do anything because of corruption.

The JR Decision

10.An oral hearing was fixed for 31 March 2018 but the applicant failed to attend the same.  Deputy Judge Lam proceeded to consider the application on paper.  After summarizing the facts and background of the case and giving due consideration to the decision of the Board, the Judge refused leave to apply for judicial review for reasons set out in [35] - [48] of the JR Decision:

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

36.     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’. Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

37.      The Applicant complained there was no legal representation after the Director's decision dated 26 April 2017.

38.     The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

39.     The Applicant raised his language problem.

40.     It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.

41.     In the current application, Form 86 and the Applicant's affirmation were prepared in English. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while he was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

42.     The Applicant complained he received the appeal bundle only shortly before the Board hearing. He did not say when he actually got the bundle.

43.     According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.There was no evidence the rules had been breached.

44.     The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment in the appeal hearing.

45.     The Applicant said it was wrong for the Adjudicator to find he was educated and had not done enough to seek help from the Pakistan authorities.

46.  The Adjudicator was cognizant of the Applicant's education level and his working experience. He did not say the Applicant was a very educated man. He merely considered the Applicant was in a position to take his case to the higher authorities but he did not. 

47.     The Applicant said it was almost impossible for him to complain to the higher authorities in his country because of the corruption there. The Adjudicator was aware there were problems with the Pakistan police but he was satisfied from the country-of-origin information ("COI") that there were systems of checking and redress in Pakistan. He found the Applicant had not done enough to seek help from the Pakistan authorities and thus failed to prove reasonable state protection was not available to him. The Adjudicator’s finding was not Wednesbury unreasonable.

48.     I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator 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 Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

Application for extension of time to appeal the JR Decision

11.As mentioned earlier, the applicant was late in filing a notice of appeal from the JR Decision.  He filed a summons in the Court of First Instance on 20 September 2019 for extension of time to appeal.  That was dismissed by the Judge on 26 June 2020.  Hence, the summons to this court. 

Discussion

12.In considering whether to extend time for appealing, 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 (although the lack of prejudice does not mean that an extension will be granted).  As for (1), the applicant was late by 6 days (not 15 days as held by Deputy Judge Lung) between the JR Decision and the summons filed in the Court of First Instance.  His delay was not lengthy. 

13.As for (2), the reasons for the delay, the applicant stated in his summons and supporting affirmation that he did not receive the court order and the JR decision and he only learnt about it when he received a call from the Immigration officer on 11 September 2019 informing him about the JR Decision.  Deputy Judge Lung found that the applicant had failed to attend the hearing before Deputy Judge Lam as the notice of hearing was returned and marked “incomplete address”.  Deputy Judge Lung rightly pointed out that it is the duty of the applicant to supply a complete and valid address and he had to shoulder the consequence of his failure to do so.

14.The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant’s proposed grounds as set out at his supporting affirmation of 20 September 2019 for his time extension application was a repetition of grounds seeking leave for judicial review before Deputy Judge Lam.  He made further complaints that the Board failed to adhere to the minimum standard of procedural fairness and that Deputy Judge Lam failed to make sufficient enquiry when making his decision.  However, they are bare and general assertions without any basis and we see no merit in the proposed grounds.

15.The summons, supporting affirmation and written submission for the present application did not provide any ground to pinpoint any error or raise any discernible grounds to reverse the JR Decision.  The applicant only reiterated that he would face danger if he were to return to Pakistan and expressed his general disagreement with the Director’s and the Board’s decisions as well as the JR Decision.  He urged the Immigration Department and the Court to consider his application and to save his life.

16.We are also satisfied that Deputy Judge Lam had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.   

17.As the intended appeal is unarguable, it would be futile to extend time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 11 September 2020.

The applicant, unrepresented, acting in person.