RE ANSAR MUHAMMAD

CAMP 75/2017

[2018] HKCA 334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 75 OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 208 OF 2017)

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J U D G M E N T

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

1.  On 30 April 2018, this Court (Lam V-P and Chu JA) handed down a judgment refusing to grant extension of time to the Applicant to appeal against the decision of Deputy High Court Judge Woodcock of 13 October 2017.

2.  By a Notice of Motion of 3 May 2018, the Applicant seeks leave to appeal to the Court of Final Appeal.  In the Notice, the Applicant stated as follows:

“ 1. I want the case to be reconsidered because I do not think the case has been determined fairly.

2. First and foremost, I understand that my application was made out of time but that was because I could not get the help needed in order to lodge a formal court application.

3. Furthermore, the Court does not intend to challenge the Board’s evaluation of evidence in this case by way of judicial review. It was mentioned that the determination of merits is a matter for the Board, not the court, and the court will not usurp the Board’s (as well as the Director’s) role as the primary decision maker. By making this decision, the Court seem to be suggesting that there are no other channels for non-refoulement claimants like me to seek to challenge the Board’s decision and that I will not be able to have my case determined fairly even if I lodge a judicial review with the Court or any other upper Courts. There should be a proper mechanism for claimants to seek to challenge the Board’s decision and if the Court is not ready to take part in the decision making, there should be other channels available to us.

4  I crave leave to submit further arguments or submissions to the Court.  I also request to have my case heard by way of oral hearing.”

3.  The relevant criteria for granting such leave are set out in Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484:

“ An appeal shall lie to the Court [of Final Appeal] at the discretion of the Court of Appeal or the Court [of Final Appeal], from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court [of Final Appeal], as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court [of Final Appeal] for decision.”

4.  Pursuant to Practice Direction 2.1 para 3, the Applicant lodged with the Court his skeleton submissions of 25 May 2018 reiterating his stance that the decision of the Torture Claims Appeal Board (“TCAB”) was unfair and made without thorough investigation.  He also alluded to the high standard of fairness as mentioned in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 197 and the implementation of the United Screening Mechanism after the decision of the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security FACV 15 of 2011.  He asked for a reconsideration of his case as he did not think it has been determined fairly.

5.  In the documents lodged by the Applicant, he did not set out any questions of great, general or public importance for submission to the Court of Final Appeal in the Notice.

6.  As stated in para 3 of Practice Direction 2.1, subject to specific direction to the contrary, application for leave to appeal to the Court of Final Appeal are processed on the papers without any oral hearing. 

7.  As explained in Ng Yat Chi v China Resources (Holdings) Co Ltd CACV 263 of 2005, 27 July 2016 and 李艷梅及九龍城裁判法庭 HCMP 1326 of 2016, 15 November 2016, a motion for leave to appeal to the Court of Final Appeal falls within the scope of interlocutory application within the meaning of Order 59 Rule 14A of the Rules of the High Court.  By virtue of that provision, the Court may dispose of such application without holding any oral hearing.  There is no absolute right to oral hearing. 

8.  It is a matter of case management and the Court will have regard to a host of factors in the exercise of its power, always guided by the underlying objectives in Order 1A Rules 1 and 2 of the Rules of the High Court.  Amongst those factors, the complexity of the application and the benefit that the Court may derive from oral hearing, the nature of the application, conduct of the parties and the history of the proceedings would be taken into account.  Of course, there could be other relevant factors depending on the facts of each case and this list is not exhaustive.   

9.  Thus, though the Applicant asked for an oral hearing in his submissions, having considered the grounds put forward and his submissions, we are of the view that the application can be disposed of on the papers.   

10.  We have considered the application for extension of time based on the grounds advanced by the Applicant in his documents including his written submissions of 8 January 2018.  In the judgment of 30 April 2018, we explained why we came to the view that the intended application for judicial review was not reasonably arguable.

11.  The Applicant apparently did not understand the difference in the role of the Court in an application for judicial review as compared with the role of the TCAB.  In a judicial review, the Court is not examining the evidence and findings by the TCAB as if it were the primary decision maker.  This was the point made by this Court in the judgment of 30 April 2018 at [9] and [10].  The Court is only concerned if there is any procedural unfairness or other public law grounds for challenging such findings.  In the present case, this Court did not find any reasonably arguable basis on any such ground in the present case.  

12.  That conclusion is a case specific assessment.

13.  Having now reconsidered the latest submissions of the Applicant, we do not discern any question of great, general or public importance being involved in the intended appeal.

14.  Nor can we see any basis to grant leave on the “or otherwise” limb. 

15.  For these reasons, we refuse to grant leave to the Applicant and we dismiss the Notice of Motion accordingly. 

CAMP 75/2017

[2018] HKCA 227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 75 OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 208 OF 2017)

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JUDGMENT

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock given on 13 October 2017 refusing to allow the applicant to apply for leave for judicial review out of time. The applicant entered Hong Kong illegally on 8 December 2013 and was arrested by the police on the same date. He lodged his non-refoulement claim on 10 December 2013. By the Notice of Decision of 27 November 2015, the Director of Immigration (“the Director”) rejected his claim based on the assessment of the BOR 3 risk, the persecution risk, and the torture risk. The applicant appealed to the Torture Claims Appeal Board (“the Board”). After hearing the applicant, the Board dismissed the appeal on 6 February 2017. The intended judicial review was in respect of the decision of the Board.

2.  The application for leave to apply for judicial review was not made within time.  Although the delay was not substantial, the Judge refused to grant extension of time for judicial review on the basis that there was no merit in the substantive application.  The reasons for the Judge’s conclusion on merits were set out at [28] to [33] of the CALL-1 form as follows:

“ 28. I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out. This finding also applies to the hearing before the Director. The applicant had nothing to say or submit during this hearing other than to confirm the grounds set out in his affirmation.

29. Specifically, the first ground against the adjudicator’s decision alleges procedural impropriety, a failure to properly clarify with the applicant matters that affected his credibility at the oral hearing. This ground stresses the applicant was acting in person at the time and the adjudicator did not give him the opportunity to clarify issues affecting credibility or asked questions which may have clarified discrepancies. It is claimed the adjudicator did not apply high standards of fairness as required. However, the adjudicator cannot force the applicant to give evidence and answer questions. This ground is misleading in that it suggests the applicant was willing to clarify discrepancies when that is not true. It is clear from the decision he chose not to give the adjudicator the opportunity to probe further. There is no substance in this ground.

30. The second ground against both decision-makers relate to a failure to sufficiently enquire into relevant Country of Origin conditions and relevant materials. The adjudicator made a finding he did not find the applicant credible and gave full and cogent reasons why. Having rejected the applicant’s evidence and his claim on credibility, there was no need for the adjudicator to sufficiently research and enquire into the COI conditions, the existence of State protection or the possibility of internal relocation. On the other hand, the Director did and the COI information he analysed was not hearsay, out of date or irrelevant as claimed. He found material that supported the applicant’s assertion but nonetheless went on to find material that convinced him there was reasonable State protection available. There is no substance in this ground.

31. Lastly, the Director and adjudicator are criticised for failing to consider the concept of extended state acquiescence. Both decision-makers found the applicant’s case did not amount to torture and/or CIDTP and/or persecution. The adjudicator went further and did not find applicant a genuine claimant; his evidence was not credible. The applicant did not rely on the extended concept of state acquiescence. The decision-makers did not consider this concept. In any event, the applicant made no report to the police or any authority; one of the reasons he did not was because he did not think they were serious threats. This is not a case where state authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-state officials or private persons and they failed to exercise due diligence to prevent, investigate prosecute and punish such non-state officials or private persons. I found no substance in this ground.

32. I do not find any ground that shows there was an error of law by the Director or the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

33. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

3.  According to the court record, the CALL-1 form and the sealed order of the Judge were sent by post to the applicant on 13 October 2017.

4.  Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal.  He failed to do so.  By the summons of 12 December 2017, he applied for an extension of time to appeal.  In the letter annexed to the summons, it was stated that he did not appeal on time because he was very depressed, disappointed and was not feeling well after learning that his application for leave to apply for judicial review was refused.  His application was also supported by an affirmation.  It was deposed in the affirmation that he was dissatisfied with the court’s decision, that he would resist to return to his country at any cost, and that he would reapply for legal aid.

5.  On 8 January 2018, the applicant lodged a set of written submissions.  The submissions repeated the reason for delay as stated in the letter annexed to the summons for the extension of time.

6.  By reason of Order 59 Rule 14A(1), this Court can determine an application for extension of time to appeal without an oral hearing.  The applicant was notified of such possibility by the directions given by the Registrar of Civil Appeals on 13 December 2017 before he lodged his written submissions pursuant to such directions.  Notwithstanding his request for an oral hearing in his written submissions, we consider that the present application can be determined on the papers. 

7.  We do not find the long delay between 13 October 2017 and 12 December 2017 to be excusable.  We do not accept that the delay in the present case can be justified by the applicant’s bare assertion of feeling unwell, disappointment and depression. 

8.  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; and Wong Yuk Man v Ng Leung Sing HCMP 3217/2015, 22 January 2016.  The same principle applies in non-refoulement cases, see: Re Akram Mohammad HCMP 1601/2016, 10 August 2016; and Re Khandakar Ali Muzaman HCMP 2452/2016, 22 November 2016.

9.  As indicated at [32] to [35] of the Board’s decision, the adjudicator conducted a detailed and careful analysis on the applicant’s credibility based on the evidence available before him.  It was perfectly open to him to come to his conclusion as to the lack of credibility on the part of the applicant.  As this Court has said many times before, determination of merits is a matter for the Board, not the court.  The court will not usurp the Board’s (as well as the Director’s) role as the primary decision maker, see: Re Zunariyah[2018] HKCA 14, Re Qadir Sher[2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board[2018] HKCA 152, Re Rizwan alias Rizwan Gulistan[2018] HKCA 162, and Re Masoom Parvez[2018] HKCA 163.  We do not see any reasonably arguable basis for the applicant to challenge the Board’s evaluation of evidence in this case by way of judicial review.

10.  On the basis of the Board’s finding on the applicant’s credibility, there is no basis for this Court to accept the assertion that he would be subject to torture or any form of ill-treatment if he returns to Pakistan.

11.  Having considered the materials before us, we are of the view that the findings by the Board on the lack of credibility of the applicant and the Judge’s observations are justified.  We share the Judge’s view that the applicant’s claim for judicial review was not reasonably arguable and that leave to apply for judicial review should be refused.  Given the application was unmeritorious, the Judge was perfectly entitled to refuse to grant extension of time for leave to apply for judicial review. 

12.  For these reasons, there is no prospect of success in the intended appeal.  No extension of time should be granted for hopeless appeal.  We therefore dismiss the summons of 12 December 2017.