RE LUQMAN MUHAMMAD

CAMP 67/2019

[2021] HKCA 191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 67 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 969/2017)

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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 October 2019, this court (Cheung and Barma JJA) handed down a judgment dismissing the applicant’s application for an extension of time to appeal against the decision of Campbell-Moffat J (“the judge”) on 19 December 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 the decisions of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the application for leave to 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 28 October 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. I didn’t failure to lodge of Skeleton Submission would lost me oral hearing. I specifically requested for one. I relied too much on friends as no translation for me.

2. Judges were procedurally unfair in my decision because I told them in written submission that I need extension to solve my problem in Pakistan.  My aunt will specially will visit next year to solve my problem.  She will visit to Pakistan from England with her husband to help me to solve my problem, so help me give me extension until they solve my problem.”

4.  The applicant lodged a written submission in support of the application on 11 November 2019.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion.  He also identified a number of errors allegedly committed by the Board and the Director and cited a number of decisions of the Court of Final Appeal and the Court of Appeal.

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason 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 the Notice of Motion and written submission.

6.  The matters stated by the applicant in the Notice of Motion and written submission do not constitute grounds for granting leave to appeal 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, as required by 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 the Notice of Motion and written submission.  

7.  As to the matters mentioned by the applicant, the issue of the alleged danger upon his return was already addressed at [14] of our judgment.  As for the absence of a hearing, we note that the applicant did not request a hearing for his leave for judicial review application in the Form 86.  Under RHC Order 53 rule 3(3), the judge may in these circumstances determine the application without a hearing.  We have also given reasons for not holding a hearing for the leave to appeal application at [15] of our judgment.

8.  As for the other grounds raised in the written submission, they are in very broad terms and lack particulars, and do not demonstrate any arguable error in our judgment.

9.  In our view, none of the grounds mentioned by the application are reasonably arguable before the Court of Final Appeal. 

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

11.  For these reasons, the Notice of Motion dated 28 October 2019 is dismissed.

CAMP 67/2019

[2019] HKCA 1160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 67 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 969/2017)

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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.  This is an application for extension of time to appeal against the decision of Campbell-Moffat J given on 19 December 2018 refusing 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 dated 3 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 1 April 2016 and 8 May 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong in September 2013 illegally and was arrested on the same day.  He lodged a non-refoulement claim on 5 October 2013. 

3.  The applicant’s claim was based on threats from his relatives arising out of a land dispute members of an opposing political party the threat from a group of terrorists the Maoist party in Nepal.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 1 April 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 8 May 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 11 September 2017, the Board dismissed the appeal on 3 November 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [46] of the Board’s Decision, the Board found that the applicant’s evidence was inconsistent.  The Board was also satisfied at [63] that state protection would be available for the applicant and at [65] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 28 November 2017 which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 28 November 2017, the applicant advanced the following grounds for judicial review which are summarised below:

(1)  failure to consider the concept of state acquiescence and extended state acquiescence;

(2)  failure to make insufficient enquiry;

(3)  failure to provide sufficient reasons;

(4)  failure to consider country of origin information, or fully consider the report;

(5)  failure to place weight on relevant matters or selectively placed weight on irrelevant matters or inaccurate or incorrect facts;

(6)  failure to consider a consistent pattern of human rights violations;

(7)  failure to consider if state protection exists in India;

(8)  error in placing weight on irrelevant matter, inaccurate or incorrect fact;

(9)  failure to call for psychological or psychiatric reports;

(10)  application of the incorrect standard of proof;

(11)  lack of reasonable basis for the rejection of the applicants claim;

(12)  irregularity of the decision-maker being a different person than the interviewing officer;

(13)  lack of proper basis for the consideration of internal relocation.

10.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.  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 to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [10] to [20] of the CALL-1 Form:

“10. The applicant has not identified any specific procedural irregularity, unfairness or unreasonableness by reference to the Adjudicator’s Decision. He 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. Nothing is gained by simply adopting grounds drafted by someone else who is not even the same nationality as the applicant. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

11. Based upon the facts of this case, grounds i), vi), vii) and viii) are irrelevant and without merit.

12. As to ground ii) the applicant was invited to attend a hearing on 11 September 2017. The procedure for the hearing was explained to him. He was invited to answer questions and to add any further information which he wished to add. The Adjudicator was in possession of all relevant documentation, which she read. She noted inconsistencies between his evidence before her and his previous evidence. I can see no other enquiries which she should have made in the circumstances and the applicant has not suggested any. There is no merit in this ground.

13. As to ground iii), the Adjudicator outlined all available evidence and identified the limitations of it. She explained her reasoning in some detail and commented upon the applicant’s apparent inconsistencies in his evidence. This ground also fails.

14. As to ground iv), the Adjudicator clearly did consider the COI. There is no merit in this ground.

15. As to ground v), what matters? It appears from the Decision that the Adjudicator did her best to establish the facts from the applicant. What facts did she not take into account? What facts did she take into account but in error? Which facts were incorrect? It is for the applicant to look to the Decision and identify where his complaint lies. He is not prejudiced in doing this as it is his case and he was present at the hearing. He is not required necessarily to place a legal label upon it but common sense dictates he should be able to say where he felt the Adjudicator failed to listen or misunderstood.

16. As to ground ix), there can be no criticism of the application by the Adjudicator of the burden and standard of proof. There is no merit in this ground.

17. As to ground x), the Adjudicator explained her reasoning for rejecting the applicants claim and she cannot be faulted for that reasoning. Without more, this court cannot see any merit in this ground.

18. As to ground xi), the Adjudicator considered relocation. There is no merit in this ground either.

Conclusion

19. 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. The applicant was simply not believed. The Adjudicator explained why that was the case. Nevertheless, she assessed the claim against the facts provided. There is no criticism of her determination, which was open to her on the facts and eminently reasonable.

20. 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 and grounds for appeal

12.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 11 January 2019, the applicant applied for extension of time to apeal.  His application was dismissed by the judge on 4 April 2019.

13.  By a summons dated 16 April 2019, the applicant renewed his application for an extension of time to appeal before this court.  In the affirmation dated 16 April 2019 in support of that application, the applicant deposed that “I am entering this grounds by regarding that my USM case rejected by [the Board] I am not satisfied about his decision.  I don’t have any complaint from your decision but I really need extension.”

14.  In his skeleton submissions dated 3 May 2019, the applicant explained why it is unsafe for him to return.  He asked for a “long extension” so that he can stay in Hong Kong until it is safe for him to return.

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.

16.  We would first consider the issue of delay.  When the applicant appeared before the judge in the application for an extension of time to appeal, he claimed that he did not receive the order mailed to his address on record until 10 January 2019.  It is unlikely that the mail would have taken over 2 weeks to reach the applicant’s address.  Like the judge, we do not accept the explanation by the applicant in this regard.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.

17.  Nonetheless, as the delay was relatively short, we will consider the merits of the intended appeal.

18.  In his affirmation dated 16 April 2019, the applicant confirmed that he did not have any complaint from the judge’s decision to refuse leave.  His only complaint was against the Board’s Decision.  The applicant has therefore failed to identify any viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

19.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 16 April 2019 is dismissed accordingly.

20.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.