RE BASHIR ARFAN

CACV 45/2018

[2018] HKCA 659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 45 OF 2018

(ON APPEAL FROM HCAL 480/2017)

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J U D G M E N T

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

1.  On 25 June 2018, this court (Cheung CJHC and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 9 February 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from a decision of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a notice of motion dated 6 July 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that:

“1. The Judges have wrongly exercised their case management power. One of my arguments was that the Board was wrong in considering that my delay in lodging the non-refoulement claim was ‘damaging’ to my case. I have explained that the delay was due to my limited language proficiency and understanding of the law.

2. The judges determined that issue by looking hand in hand with the fact that I overstayed in Hong Kong for over 7 months before I was arrested and did not make a non-refoulement claim until nearly 3 months after my arrest.

3. I seek a reconsideration of the case with an oral hearing arranged”.

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 20 July 2018.  In his written submission, the applicant reiterated the grounds for seeking leave set out in the notice of motion.  He also added that the statement by the Board that the arrest warrants produced by the applicant could not show that he would have no opportunity to apply for bail or receive a fair trial in Pakistan demonstrated bias on the part of the Board.

5.  Having considered the applicant’s notice of motion and written submission, we can find no reason for us to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of his notice of motion and written submission.

6.  The matters stated by the applicant in his notice of motion do not constitute valid grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in his notice of motion and his written submission.  

7.  The first two grounds for seeking leave are apparently directed toward [14] and [15] of the judgment dated 25 June 2018, where this court held that it was open to the Board to take into account certain matters in evaluating the credibility of the applicant’s claim.  The two grounds advanced by the applicant are only concerned with purely factual issues and do not involve any question of law.  Thus, it is inappropriate for this court to grant leave based on those grounds.

8.  As for the ground raised in the skeleton submissions concerning the Board’s evaluation of the arrest warrant, this was dealt with at [13] of our judgment.  This ground is also only concerned with purely factual issues and is, in our view, bound to fail. 

9.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  For these reasons, the notice of motion dated 6 July 2018 is dismissed.

CACV 45/2018

[2018] HKCA 361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 45 OF 2018

(ON APPEAL FROM HCAL 480 OF 2017)

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___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock dated 9 February 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Pakistan. He entered Hong Kong on 11 January 2013 as a visitor and overstayed. He was arrested by the police on 20 August 2013. On 14 November 2013, he lodged a claim for non-refoulement protection. According to the applicant, he operated a college placement and travel agency in Pakistan. In December 2012 his agents kidnapped him and assaulted him when he was unable to refund monies received from customers whose visas to study abroad were refused. The agents learnt that the applicant had filed a police report and threatened to kidnap his son. The applicant then fled to Hong Kong.

2.  The Director decided against the claims on 22 April 2016.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”).  By a Further Decision of 23 December 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 23 February 2017, the Board dismissed the appeals on 20 July 2017 (“Board Decision”).

4.  The intended judicial review was in respect of the Board Decision only.  The Form 86 filed by the applicant on 4 August 2017 did not contain any ground for judicial review.

5.  In his affirmation dated 4 August 2017, the applicant advanced the following grounds:

(1)   The adjudicator failed to enquire into the COI.

(2)   The adjudicator wrongly concluded that the applicant’s evidence was not credible.

(3)   The adjudicator failed to give sufficient weight to the applicant’s injury.

(4)   The adjudicator failed to assess whether state protection existed.

(5)   The applicant was unable to submit additional information for BOR2 risk.

6.  The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [23] to [29] of the CALL-1 Form of 9 February 2018:

“23. 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, claim and evidence carefully. The applicant’s complaints against him and the procedure undertaken is not made out.

24. He complains in his grounds that the adjudicator wrongly rejected his credibility but I am satisfied that the adjudicator gave ample reason that showed a careful analysis of the applicant’s evidence. His finding of State protection was reasonable.

25. The adjudicator is accused of failing to sufficiently research and enquire into the COI conditions but I am satisfied that there has been objective research into ample and up-to-date material and his conclusion given was sufficient reason.

26. The applicant accuses the adjudicator of failing to give sufficient weight to his injuries received but in fact the adjudicator found that they did reach the minimum level of severity required to be defined as torture.

27. The applicant makes much of the fact he was unable to submit additional information with regard to a BOR 2 risk claim and therefore prejudiced but clearly his counsel during the appeal hearing conceded that he was on his own facts unable to rely on Article 2 and this ground.

28. I have considered the contents of his affirmation but in the main, it is repetition of his claim and a reiteration that he cannot internally relocate. It is a repetition that his family members have recently been injured because of him.

29. None of the grounds put forward by the applicant showed any error of law by the adjudicator.  There was no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  None of the grounds were reasonably arguable and there is no realistic prospect of success.  I refuse leave for judicial review.”

7.  In the notice of appeal of 15 February 2018, the applicant advanced the following grounds of appeal:

(1)   The adjudicator had wrongly accused the applicant of being an unreliable witness.

(2)   The applicant ought not to be criticised for the late submission of his torture claim having regard to his language handicap. 

(3)   The judge failed to take into account the biased comment by the adjudicator that the arrest warrants produced by the applicant could not show he will have no opportunity to apply for bail or receive a fair trial.

8.  In the written submissions dated 21 May 2018, the applicant repeated the same grounds in the Notice of Appeal.  He further argued that the adjudicator “unnecessarily assumed that the police force in Pakistan is of the same level as Hong Kong’s”.  The poor quality of the arrest warrant is not indicative of forgery but the result of the ill-preparation by the Pakistani police.

9.  The applicant agreed by a letter of 9 March 2018 that the appeal can be heard by two judges.

10.  Having considered the applicant’s case in light of the materials before us, we find the judge’s observations to be justified.

11.  The grounds of appeal are mainly concerned with the Board’s assessment of the arrest warrants produced by the applicant.  At the Board hearing, the applicant was legally represented and he elected to testify.  The applicant produced copies of 2 arrest warrants issued in Pakistan in April and July 2015 (§37 Board Decision).  The applicant also admitted he lost both of his passports because he gave them to a man claiming to be able to arrange a false instrument for the applicant to stay in Hong Kong.

12.  The Board concluded at §83 that the second arrest warrant is “very poorly worded and difficult to understand” and also “appears to be contradictory on its face”.  Taking into account the applicant’s apparent willingness to use false documentation to stay in Hong Kong, the Board expressed doubt as to the authenticity of the warrant.  The Board further held that even if the warrant were authentic, it was doubtful whether it supports the applicant’s contention.

13.  In our view, the Board was entitled to take into account the applicant’s admission of attempting to obtain a false instrument when evaluating the genuineness of the warrant.  The Board was also entitled to consider this admission in evaluating the overall credibility of the applicant.  Further, we agree with the Board that the warrants do not advance the applicant’s claim.  There is no merit in this ground.

14.  The applicant argues that the Board was wrong in concluding that the applicant’s delay in lodging the non-refoulement claim was “damaging” to his case (§81 Board Decision).  The applicant explained that the delay was due to his limited language proficiency and understanding of the law. 

15.  The applicant overstayed in Hong Kong for over 7 months before he was arrested.  He did not make his non-refoulement claim until nearly three months after his arrest.  This is a matter which the Board could properly take into account. This ground has no merit.

16.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

17.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.  

The applicant acting in person