Re Muhammad Shakeel

CAMP 360/2022, [2023] HKCA 550

On Appeal From [2022] HKCFI 1218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 360 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 522/2019)

____________________

____________________

___________________

J U D G M E N T

___________________

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

1.This is an application for extension of time to appeal against the decision of DHCJ To (“the Judge”) dated 28 April 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 4 February 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 18 May 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong illegally in February 2007 and was arrested by the police on 24 July 2007.  On 13 September 2007, he lodged a torture claim, which was rejected by a decision of the Director dated 28 November 2013, against which he did not appeal.  On 4 December 2013, he raised a non-refoulement claim.

3.The applicant’s claim was based on a fear of being harmed or killed by a man named Saleem.  The details of the applicant’s claim have been summarised by the Judge at [6] to [10] of his decision (“the CALL-1 Form”)[1].

4.By a Notice of Decision dated 18 May 2018, the Director decided against the applicant’s claim.  The Director’s Decision covered the persecution risk[2], the BOR 2 risk[3] and the BOR 3 risk[4] (i.e. all applicable grounds other than torture).

5.The applicant appealed to the Board.  After a hearing on 9 August 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board found that the applicant’s evidence on his fear of harm from Saleem was incredible, and that in any event suitable options of internal relocation were available to him.

The Judge’s decision

6.The applicant filed a Form 86 on 22 February 2019 seeking to judicially review the Board’s Decision, without setting out any grounds.

7.In his supporting affirmation, the applicant set out his grounds of review, which were summarised by the Judge at [15] of the CALL-1 Form.  They broadly consist of allegations that the Board was irrational or engaged in procedural impropriety in reaching its Decision, and that it had no reasonable basis to reach its conclusion on the applicant’s credibility.

8.After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave detailed reasons in refusing leave to apply for judicial review at [17] to [47] of the CALL‑1 Form:

“17.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration.

Grounds (1) and (10) - No reasonable basis for rejecting the claim or credibility

18.  The Board found the Applicant incredible and gave detailed reasons.  On the basis of this finding, it found that the Applicant had failed to discharge the burden of proving the factual case in support of his claims.  These are finding of fact which is solely within the arena of the Board which the court in an application for judicial review will not interfere save for errors of law, procedural impropriety and irrationality in its decision.  This aspect will be considered in the Court’s overall examination of the Decision.

Grounds (2) and (11) – Failure to consider extended form of state acquiescence

19.  The Applicant having failed to prove that he suffered torture, state acquiescence is an irrelevant issue.  If he failed to prove he suffered torture, the question as to who inflicted the torture does not arise.  In paragraph 167 of the Decision, the Board held there was no actor of torture and cruelty, inhuman, degrading treatment or punishment when dismissing the Applicant’s claim under BOR 3 Risk ground. 

20.  In paragraph 179 to 180, the Board found for the same reason that there was no state actor when dismissing the Applicant’s claim under Persecution Risk ground. 

21.  The Board considered availability of state protection in paragraphs 149 to 164 of the Decision.  It referred to COI favourable to and relied on by the Applicant as well as those in support of availability of adequate state protection.  It found that corruption particularly within the lower levels of police was common and that the police system suffered severe deficiencies in multiple areas, including equipment, technology training and intelligence capacity.  However, from other COI, it found that Pakistan recognized the rights derived from the inherent dignity of the human person and that government devoted much effort in reforming the police, improving police professionalism and effectiveness, fighting corruption and providing redress against abuse of power by the police. The Pakistani government set up a high power National Accountability Bureau charged with the responsibility of eliminating of corruption through a holistic approach of awareness, prevention and law enforcement.  Pakistan has a criminal justice system which ensures that no person shall be deprived of life or liberty save in accordance with law.  Citizens are protected from unlawful arrest and detention.  Citizens have easy access to the Federal Ombudsman to make complaints of mal-administration in any Federal Government agencies.  The Board came to the conclusion that state protection of an adequate standard is available.  Availability of state protection is inconsistent with the notion of state acquiescence.  There is also no evidence of state acquiescence in the present case.  The issue of state acquiescence has been considered, including acquiescence in the extended form. 

Grounds (3) and (12) - Failure to fully consider COI reports in assessing risk to the Applicant

22.  These grounds were considered in Ground (S25) below.

Grounds (4) and (13) - The interviewer not being the same person as the decision maker

23.  To the Court’s knowledge, the interviewer at the screening interview is usually the decision maker in the Director’s Notice of Decision.  The Applicant did not produce the record of interview which he has a copy to support his claim.  The Court could have called for a copy of the record of interview; but there is no need to labour on this point as there is no substance in this complaint, even if it is true.  The appeal before the Board is a fresh hearing.  The decision maker is the Board which is not the person who conducted the screening interview or the Director. The decision of the Director in the 2018 Notice is superseded by the Decision of the Board.  Whatever defects which might have existed for the reason complained of was removed by this fresh hearing. 

Ground (5) - Irrationality – failure to place weight on relevant information and/or selectively placing weight on irrelevant information; Ground (7) - placing weight on irrelevant matters, or inaccurate or incorrect facts

24.  These two grounds are similar and may be considered together.  It is the Board’s duty to make finding of facts necessary for its decision.  To do so, it places weight on evidence which it accepts and which is relevant to the issues in question and ignores evidence which it does not accept or which is not relevant.  The weight to be given to the evidence which it accepts is a question solely for the Board which the court in an application for judicial review will not interfere save for errors of law, procedural impropriety and irrationality in its decision.  The Applicant has not identified the relevant information which it complained the Board had failed to accord weight or irrelevant information which the Board had placed improper weight.  In the absence of such particulars, the Court could only focus its attention on these vitiating elements in its overall scrutiny of the Board’s Decision.

Ground (6) - Irrationality – failure to consider a consistent system of human right violations; Ground (6A) - failure to consider if state protection exists in Pakistan

25.  These grounds are about the Board’s finding of fact based on the COI.  They have been considered under Grounds (3) and (12) and will not be repeated.

Ground (8) - Procedural impropriety – failing to call for psychological and/or psychiatric reports and/or evaluations

26.  The Applicant never complained about psychological or psychiatric ill-treatment.  There is no evidence that he had requested such examination and was refused.  The need for psychological or psychiatric or other related report or evaluation never arose. 

Ground (9) – Procedural impropriety – applying incorrect standard of proof

27.  The Applicant accused the Board of applying the incorrect standard of proof.  He did not identify the finding which was made as a result of such error.  The Board’s approach in its fact finding process is set out in paragraphs 103 to 111 of its Decision.  In paragraph 103, it reminded itself of the correct standard of proof.  In paragraph 104, it correctly stated that the Applicant has the statutory obligation to establish his claim and the Board has a shared responsibility with him to ascertain and evaluate all relevant information.  In paragraph 105, the Board correctly defined the standard as a ‘reasonable degree of likelihood’.  It also referred to UNHCR Note on Burden and Standard of Proof and reminded itself that to show a statement is credible is not the same as to show that it is true.  It said ‘A decision-maker may be uncertain of the veracity of a statement concerning a material information.  He can still find it credible and accept it for the purpose of non-refoulement determination.’ Thus, the Board clearly understood that the standard is even less than the civil standard of balance of probability.  Having examined the Decision with anxious scrutiny, the Court was satisfied that the Board had applied the correct standard. 

Ground (14) – No proper basis for consideration of internal relocation.

28.  The Board considered internal relocation in paragraph 184 of its Decision.  It referred to the Constitution of Pakistan which guarantees freedom of movement of its citizens.  It also referred to Country Policy and Information Note Pakistan: Background information, including actors of protection, and internal relocation and was satisfied that there are other cities such as Lahore and Islamabad which provide a suitable environment for the Applicant’s relocation.  Having considered the fact that the Applicant is an able-bodied man of 36 years of age at the time with primary school education and three years of experience as a salesman, the Board considered he could reasonably live without undue hardship if he relocates to those cities.  There is no basis of complaint on this ground.

Grounds (S12) and (S17) – Persecution Risk 

29.  The Applicant’s complaint is the Board’s failure to find the ill-treatment suffered by the Applicant falls within the protection under the 1951 Convention relating to the status of Refugees, namely for reasons of race, religion, nationality, membership of a particular social group or political opinion (the ‘Convention reasons’).  Upon the Board’s finding that the Applicant failed to prove he was at risk of torture, the question whether the alleged torture was inflicted for a Convention reason does not arise.  Furthermore, the Applicant’s case is that he was threatened because of his refusal to assist in the murder, which obviously was not related to any of the Convention reasons.

Grounds (S22), (S30), (S35) - No legal representation and language assistance; Ground (S18) – The Board relied on COI not provided to the Applicant before the hearing

30.  In gist, the Applicant’s complaints are that he was not given language and legal assistance in pursuing his claims and that he did not have enough time to prepare for the appeal as the hearing bundle containing documents not written in his first language was only provided to him a few days before the hearing.  He also made an unusual complaint that the Board relied on COI not provided to him before the hearing.  If substantiated, that is a serious procedural unfairness.

31.  In Re Zafar Muazam, Re Zunariyah, Re Zahid Abbas, Re Tariq Farhan and Re Lopchan Subash, the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar nor the judgment of FB v. Director of Immigration prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the claimant is prejudiced for want of legal and language assistance.

32.  The Applicant had the benefit of legal representation in presenting his case to the Director.  All the benefits that legal representation could have afforded him were contained in his written submissions, the TCF, the SCF and answers in the CAT interview and USM interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board.  The Applicant suffered no prejudice due to lack of legal representation before the Board.

33.  In Karamjit Singh, the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury of having any documents fully translated into his first language for his benefit as and when he requires.  He has to find assistance himself from among his friends and his ethnic community.  Indeed, the Applicant was able to file an adequately well written affirmation in English himself.

34.  Furthermore, the hearing bundle is basically made up of his TCF, SCF, the record of his two screening interviews, and the 2018 Notice with the COI.  He knows what is contained in his TCF and SCF which were filled in by him with the assistance of an interpreter and the Duty Lawyer Service.  He knows what is contained in the two records of screening interview which he attended with the assistance of interpreter and legal representation.  The records had been read back to him in his own language and he signed to acknowledge that he understood and agreed with their contents and that no amendment was necessary.  Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips. 

35.  The 2018 Notice and COI are in English and unfortunately have not been translated.  However, the Board gave a full account of the preparation and handling of the hearing bundle in its Decision which showed that these documents had been interpreted to him.  In paragraph 10 of the Decision, it described the hearing bundle was prepared in accordance with the guidance of the High Court decisions in SS v Director of Immigration and another; AM v Director of Immigration and another and Re MI.  It included Appendix A which is an index of the hearing bundle and Appendix B which is an index of the COI.  In paragraph 20, the Board stated the list of documents contained in the hearing bundle and said:

‘Then, an original copy of the Director’s decision dated 18 May 2018 was given and explained to the Petitioner via the [Duty Lawyer Service]. All these documents, together with the skeleton submission of the Director dated 2 August 2018, formed the substantial parts of the Hearing Bundle.’

So, not only had the Applicant been served with the hearing bundle containing the COI, he had been explained the content by the Duty Lawyer Service.  If that explanation was not adequate, he should have requested assistance there and then.  He obviously did not.  As mentioned above, the Applicant actively discussed the COI with the Board, indicating his knowledge of the COI.  The Court was satisfied that the very high standard of procedural fairness in relation to the preparation and handling of the hearing bundle and the appeal proceedings has been observed.

36.  Furthermore, as mentioned above, the Applicant has to find assistance himself from among his friends and his ethnic community.  The Notice was issued on 18 May 2018.  The oral hearing was conducted in 9 August 2018.  In between, he had three months to find out what the appeal bundle is about, if he was at all serious in pursuing his non-refoulement claims.  He should not do nothing and expect the host country would translate the documents to him as and when he requires as if the host country is head-hunting for people of his expertise.  Besides, at the hearing, he actively discussed the COI with the Board.  He did not seek language assistance in relation to the COI before the Board.  He obviously knew the contents of the COI. 

Ground (S25) – Failure in making sufficient inquiry about COI

37.  The 18 items of COI relied on by the Director and the Board are set out in Appendix B of the 2018 Notice.  They are all from credible, authoritative and official sources, including Country Report on Human Rights Practices for 2017 published by the United States Department of State; The World Factbook - Pakistan, published by United States Central Intelligence Agency; Country Policy and Information Note: Pakistan: Background information, including actors of protection, and internal relocation Version 2.0, June 2017 and Pakistan Country of Origin Information (COI) Report, 9 August 2013 published by the United Kingdom Government; The National Accountability Bureau Annual Report 2016; other publication by the Pakistan government; and other news reports and articles.

38.  Having regard to the nature of the information, the information must contain an element of hearsay.  The people responsible for compiling and publishing the information are usually people acting under a duty owed to public authoritative bodies to provide reliable information.  The information is credible. 

39.  The Board had considered COI favourable to the Applicant and those contradicting the Applicant: see Grounds (2), (3), (11) and (12) above.  Other than a bald and unsupported allegation of failure, the Applicant did not provide any COI which he suggested the Board could have found by exercising due care and diligence.

40.  The essence of the Applicant’s complaint is about the weighting put on different parts of the COI and that the Board was cherry-picking and giving weight to the COI adverse to the Applicant.  The Board had carefully considered the information.  The weight to be given to a COI or parts of it is a matter for the Board having regard to the nature of information, the circumstances the information was obtained etc.  It is a finding of fact solely within the province of the Board.  The Court would bear this ground in mind in its overall examination of the Decision.

Ground (S28) – Failure in making sufficient inquiry, failure to appreciate the Applicant’s limitation in adduce proof, failure to give the Applicant chance to arrange his evidence

41.  This another bald and unsupported allegation of failure.  The Applicant did not provide particulars of any inquiries which he complained the Board could have made by exercising due care and diligence.

42.  He also gave no particulars as to how the Board had failed to give him chance to arrange his evidence.  As indicated above, he had three months in between the receipt of the Notice and the hearing to prepare his appeal.  The Notice had been explained to him by the Duty Lawyer Service.  At the hearing, he adopted the evidence given in his TCF, SCF, record of screening interview, etc.  He had the opportunity to testify at the hearing and adduce such evidence as he wished.  He made no complaint about lack of opportunity to prepare or arrange his evidence.  As indicated in paragraph 21 of the Decision, at the end of the hearing, he had been asked to read the skeleton submission of the Director and to reply.  He replied but made no complaint about lack of chance to prepare for his evidence.  This complaint is un-particularized and unsupported by evidence.

43.  As for the alleged failure of the Board in appreciating the Applicant’s limitation in adducing proof, this issue was discussed in Ground (9) above.  The Board clearly recognized this limitation and hence adopted a standard of proof less than the normal civil standard of balance of probabilities.

Grounds (S21), (S29) and (S33) - The Applicant did not receive the Director’s invitation to submit claim based on BOR 2, no fair hearing regarding BOR 2 claim

44.  This complaint is based on the non-receipt of a letter dated 22 November 2016 from the Director inviting submission relating to a claim based on BOR 2 Risk ground and that the Decision dismissing his claim based on BOR 2 Risk ground was made without a hearing or a fair hearing.  

45.  These grounds have no bearing to the circumstances of this application.  They have obviously been blindly copied and pasted from some other applications in which the BOR 2 Risk ground had not been considered or adequately considered by the Director and then the Director invited further submission from the applicants.  Unlike those cases, here the Applicant first made a CAT claim and after that was rejected, he made a USM Claim.  Under the USM Claim all the applicable grounds other than Torture Risk ground were considered, including the BOR 2 Risk ground.  The Director never issued an invitation letter dated 22 November 2016.

Conclusion

46.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board found the Applicant not credible and that he had failed to prove the factual basis to support of his case.  It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the three applicable grounds.  The Court could detect no error of law or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

47.  For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.”

The present application for extension of time to appeal

9.The applicant’s last known address in his Form 86 was at Flat A, 9/F of a building in Yu Chau Street, Sham Shui Po (“the 9/F Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the 9/F Address on 28 April 2022, and were not returned undelivered.

10.Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 28 April 2022.

11.The applicant thereafter took out a summons in the Court of First Instance on 17 May 2022 seeking extension of time to appeal, in which his address was stated to be at Flat A, 8/F of a building in Yu Chau Street, Sham Shui Po (“the 8/F Address”).  He claimed that he was out of time for his appeal because he received the Judge’s decision “late”.

12.The applicant’s application to appeal out of time was dismissed by the Judge on 24 August 2022[5].

13.By a summons filed on 20 September 2022, the applicant renewed his application for an extension of time to appeal before this court, wherein, as well as in his supporting affirmation, he merely asked this court to give him “one more chance”.

14.In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court within the prescribed period, and only lodged his submissions on 6 October 2022 (late by 2 days).  Given the short delay, we have considered those submissions, in which he merely repeated the dangers he may face should he return to Pakistan, and repeated his allegation that there were “errors” in the decision-making process without providing particulars.

Discussion

15.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

16.As noted above, the Judge’s Decision was sent to the last known address of the applicant at the time (which was the 9/F Address) and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.

17.Even if the applicant’s address had changed, it was incumbent on him to update the court of his correspondence address promptly, and he must bear the consequences of his failure to do so.

18.In any event, he has failed to proffer any explanation for the delay in lodging his intended appeal.  

19.We have however nonetheless proceeded to consider the merits of the intended appeal.

20.The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

21.The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

23.For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 20 September 2022 is accordingly dismissed.