Re Khan Ajmal

CAMP 246/2020

[2022] HKCA 376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 246 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 112 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 16 November 2018, Campbell-Moffat J (“the Judge”) refused to give the applicant leave to apply for judicial review 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. The deadline was therefore 30 November 2018.

2.The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 17 December 2019 for extension of time to appeal (which was late by more than 1 year).  That summons was dismissed by the Judge on 8 October 2020. 

3.On 18 December 2020, the applicant filed his summons in CAMP 246/2020 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 19 January 2021, the applicant filed his written submissions on 29 January 2021.

Background

5.The brief background according to the applicant is as follows.  The applicant is a Pakistani national.  He is a Muslim.  In or around 2006-2007, the applicant became a supporter of the Muslim Conference Party (“MCP”).  In June 2011, he was approached by members of the Pakistan Muslim League (N) (“PMLN”) asking him to vote for PMLN.  When the applicant refused, they threatened to kill him.  A few days later, the same group assaulted the applicant with fists and sticks for 25 minutes and threatened to kill him.  The applicant did not sustain any serious injury and went to a private clinic for treatment.  He did not report the incident to the police.  Two days before the election, the applicant was attacked again and lost consciousness.  When he came round, he found himself tied up in an empty room and was then tortured by the group.  This involved burning his arm with cigarettes, placing a hot pipe on his ankle, hitting his hand with a stick and cutting his fingers with a knife.  After 25 minutes, the applicant fainted.  He did not receive any medical treatment for his injuries and the wounds healed themselves after five to six months.  He claimed to have been thus imprisoned until one day in 2013, when he managed to escape.  In the interim, he was required to cook for the group, was given one meal a day and was occasionally subjected to beatings.

6.For 4 to 5 months after his escape, he lived as a beggar.  He did not contact his family or the police, but arranged for someone to collect his passport.  On 19 May 2014, he left Pakistan for China via Thailand before coming to Hong Kong on 21 May 2014.  On the same day, he raised his non-refoulement claim by way of written representation on the basis that if he were returned to Pakistan, he would be harmed or even killed by the members of PMLN as he supported MCP and refused to vote for PMLN.

7.By a Notice of Decision made by the Director of Immigration (“the Director”) dated 12 August 2014 (“the Director’s 1^st decision”) and Notice of Further Decision dated 17 January 2017 (“the Director’s 2^nd decision”), 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 first appealed the Director’s 1^st decision (regarding his claims other than under BOR2) to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) in 2014.  The applicant attended an oral hearing on 30 December 2014 and by its decision dated 6 February 2015, the Board dismissed the appeal and confirmed the Director’s 1^st Decision.  For the reasons set out at [51] to [62], the Board rejected the applicant’s claim on the issue of credibility as his evidence was inconsistent, implausible, vague and evasive.  Further, there was no acceptable evidence that the police or the public authorities actually knew of what had occurred to him, or that they refused to help him [86].  In any event, internal relocation is a viable option [109].  For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim based on BOR 3 risk, torture risk and persecution risk.  

9.By the Board’s decision dated 8 December 2017, it dismissed the applicant’s appeal against the Director’s 2^nd decision in respect of his claim on BOR 2 risk based on the same factual background and evidence. 

Application for leave to start judicial review

10.On 24 January 2018, the applicant filed a Form No. 86 together with his supporting affirmation to apply for leave to judicially review the Board’s decision in which he advanced the following grounds for relief as duly summarized at [10] of the Form Call-1:

(1)     The Adjudicator acted irrationally and/ or unreasonably, in that he:

(a)     failed to consider the concept of state acquiescence and/or the extended form of state acquiescence;

(b)     failed to place weight on relevant information;

(c)     placed weight on irrelevant information, or incorrect or inaccurate facts;

(d)     failed to consider a consistent system of human rights violations;

(e)     failed to consider if state protection exists in Pakistan;

(f)     failed to consider the Country of origin information (“COI”);

(g)     used an improper basis for consideration of internal relocation;

(h)     failed to provide adequate reasons; and/or

(i)     there was no proper basis for rejecting the Applicant’s credibility.

(2)     There was procedural impropriety in that the Adjudicator:

(a)     made insufficient enquiry;

(b)     failed to investigate COI;

(c)     failed to call for psychological or psychiatric reports;

(d)     applied the incorrect standard of proof; and

(e)     the procedure was irregular as the decision maker was not the interviewing officer. The Board had significantly relied on source of news not officially recognized or which was hearsay or outdated resulting in the Board making groundless speculations that it would be safe for him to return to his home country.

The JR Decision

11.The applicant did not request for an oral hearing and the Judge disposed of the application on paper.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons and conclusions set out in [11] - [14] of the JR Decision:

“11. There are no particulars provided for any of the Applicant’s grounds.  They are copied from grounds submitted in other applications for judicial review and, without more, are wholly unhelpful to the Applicant and a waste of judicial time.  The Applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  It is incumbent upon the Applicant to make good his grounds, which he has failed to do.  Without more, the Court is restricted to that which is self-evident from the papers.

12.     As to 1a), d), e) and 2c) and e), these are not applicable to his claim and are without merit.  As to 1b) and c) and 2 a), these repeat themselves.  As to 1f) and 2b), these once again mirror each other.  The Applicant has not indicated what COI, the Adjudicator failed to consider which was relevant to the facts of his case.  These grounds are without merit.  As to 1g), h), i) and 2d), the Adjudicator clearly did make enquiry but the Applicant was disbelieved.  She gave her reasons for this after properly considering the tests to be applied.  These too are wholly without merit.

Conclusion

13.     I have considered the papers and grounds 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.  Despite the onus being upon the Applicant, the 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.  There is no criticism of her determinations, which were open to her on the facts and eminently reasonable.

14.     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.”

Application for extension of time to appeal the JR Decision

12.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 17 December 2019 for extension of time to appeal.  That was dismissed by the Judge on 8 October 2020.  Hence, the summons to this court. 

Discussion

13.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 an extension will be granted).  As for (1), the applicant was late by more than 1 year between the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.

14.As for (2), the reasons for the delay, the applicant alleged at the hearing before the Judge that he had intended to return to Pakistan but changed his mind, and that caused the delay. As rightly pointed out by the Judge, that was not a good reason.  

15.The applicant alleged a different reason for delay in his written submission in support of the present application and claimed that he did not understand the system for appeal and the time limit for filing the notice of appeal.   It must be rejected as ignorance of law is not a valid and good reason for the substantial delay.  Further, the applicant has been pursuing his non-refoulement claim since he came to Hong Kong in 2014 and he should know well by now that there are time limits in applications to court.

16.The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  In his application for extension of time before the Judge, he did not raise any proper ground of appeal against the JR Decision and the Judge found no realistic prospect of success in the intended appeal and thus refused leave.

17.In his summons and supporting affirmation for an extension of time before this Court, he did not provide any ground to reverse the JR Decision. 

18.In his written submissions, he made general accusations that the Director and the Board had failed to (a) observe high standards of fairness and make sufficient inquiries into the COI and (b) take into account and give proper weight to relevant considerations and materials, and hence the decision was illegal.

19.The Court of Appeal has repeatedly emphasised that the Court is not a further avenue for appeal against the Board’s decision and the primary factual decision maker is the Board, and the Court would only intervene if there are valid public law grounds: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].   Here, the Board rejected the applicant’s case on the issue of credibility.  It was perfectly open to the Board to reach its findings and conclusions and the judge rightly held that there was no error or procedural unfairness or irregularity in the Board’s decision.

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

21.As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 18 December 2020.

The applicant, unrepresented, acting in person.