RE KASHIF MUHAMMAD

CACV 188/2020

[2021] HKCA 621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 188 OF 2020

(ON APPEAL FROM HCAL NO 1400 OF 2018)

___________________________

___________________________

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

BACKGROUND

1.  This is the applicant’s application for leave to appeal out of time to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Toh and G Lam JJ) handed down on 12 January 2021 ([2021] HKCA 47) rejecting the appeal against the decision of Deputy High Court Judge K W Lung dismissing his application for leave to apply for judicial review concerning his non-refoulement claim[1].

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar directed on 4 March 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 17 March 2021.  Having considered the Notice of Motion and the written submission, it is appropriate for the Court of Appeal to determine this application on paper.

3.  The applicant is a national of Pakistan who is 32 years old[2]. His non-refoulement claim was made on the basis that he would be harmed or killed by two groups of men if he is repatriated to Pakistan as he had witnessed a murder resulting from a fight between them.

4.  His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 22 August 2017.  His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board (“the Board”) on 9 July 2018.

5.  He filed a Form 86 on 16 July 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  His application was refused by DHCJ K W Lung on 3 June 2020.

6.  On 15 June 2020, the applicant filed a notice of appeal against the decision of DHCJ K W Lung.  His appeal was heard by the Court of Appeal on 5 January 2021.  It was dismissed by the Court of Appeal on 12 January 2021.  The applicant filed a Notice of Motion on 3 March 2021 for leave to appeal out of time to the Court of Final Appeal.

GROUNDS OF APPEAL

7.  The applicant stated the following as his grounds of appeal in the Notice of Motion:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL [sic] Information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefers to ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

8.  His further submissions in writing may be summarized as follows:

(1)  High standards of fairness are required in the determination of a torture claim;

(2)  The Board acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing his credibility.

ANALYSIS

9.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  The Court of Appeal may extend the time for making the application under section 24(5).

10.  Good grounds have to be shown by the applicant for the court to grant him an extension of time.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena[2019] HKCA 959 at §1.4).

11.  Section 22(1)(b) of the Ordinance provides that 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.

12.  In the present application, the applicant was late for more than 3 weeks in filing the notice of motion.  He explained in his affirmation that he did not receive the judgment within the time stipulated for appeal.

13.  The Court of Appeal judgment was sent to the applicant by post on 12 January 2021.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran[2018] HKCA 439, at [15]).  Besides, the applicant did not specify the date when he received the judgment and did not produce the envelope bearing the postal chop as evidence of the delay of postal service. Therefore, the applicant failed to show good grounds which justify granting an extension of time.

14.  Moreover, the applicant’s grounds of appeal are just bare assertions without particulars or evidence in support.  He has not shown any merit in his intended appeal.  In particular, the applicant has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his appeal.  He has also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

15.  For the above reasons, the Notice of Motion filed on 3 March 2021 for leave to appeal to the Court of Final Appeal is dismissed.

[1][2020] HKCFI 1014

[2] DOB: 26.3.1989

CACV 188/2020

[2021] HKCA 47

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 188 OF 2020

(ON APPEAL FROM HCAL NO 1400 OF 2018)

___________________________

___________________________

________________

J U D G M E N T

________________

Hon Toh J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 3 June 2020[1]. By that decision, the judge refused to grant leave to the applicant to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of Pakistan.  He is 31 years old.  He came to Hong Kong illegally on 20 February 2016 and was arrested by the police on the same day. He lodged a non-refoulement claim on 22 February 2016 on the basis that he would be harmed or killed by two groups of men if he is repatriated to Pakistan as he had witnessed a murder resulting from a fight between them.

The Director’s decision

3.  By a Notice of Decision dated 22 August 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  The Director found that there is no reasonable likelihood that the risk of harm from the two groups of men is real and foreseeable.  The Director also considered that there is no indication that any particular political or official powers in Pakistan had or would have adverse interest in the applicant.  His problem with the two groups of men was localized in his residence and working location.  The Director assessed that the availability of state protection and internal relocation option further lowers or negates the perceived risk.

The Board’s decision

5.  The applicant appealed to the Board against the Director’s decision.   An oral hearing was held on 6 June 2018.  The Board did not accept that the applicant had witnessed a fight in which a person was fatally shot and did not accept that he was ever threatened or harmed by anyone linked to the asserted events because of the significant inconsistencies in his evidence.  The Board was not satisfied that the applicant faces a real chance of harm of any kind in Pakistan for any reason and rejected the appeal on 9 July 2018.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 16 July 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

7.  His grounds for his intended judicial review may be summarized as follows:

(1)  The Director failed to appreciate the presence of state acquiescence;

(2)  The Director failed to maintain high standard of fairness;

(3)  The Director failed to take into account the failure of the state to provide reasonable protection to citizens but only gave weight to evidence according to his pre-conceived conclusion which was unfair to him;

(4)  The Board had not made sufficient enquiries into the matter and failed to give sufficient chance for him to adduce relevant evidence.

The judge’s decision

8.  The applicant appeared at the hearing on 20 December 2018.  He confirmed before the judge that he did not have any complaint against the Director in relation to the process of interview and did not have any complaint against the Board.  The judge held that the applicant has not set out any exceptional circumstances which entitled him to apply for judicial review of the Director’s decision.  The judge considered that the applicant failed to identify the evidence he intended to adduce to the Board and the effect of having no such evidence.  The judge also held that the rest of the applicant’s grounds are not supported by evidence. The judge found that the applicant was unable to show he had any reasonable chance in his intended judicial review and dismissed the leave application on 3 June 2020.

Grounds of Appeal

9.  The applicant stated his grounds of appeal in the Notice of Appeal as follows:

(1)  The applicant will face hardship if he is to return back to his home country;

(2)  the Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay.  They have also relied on some cases which are outdated considering the dramatic changes.  The lack of credible source of information has resulted in the Board making groundless speculations.

10.  In his skeleton submissions, the applicant stressed that high standards of fairness are required in the determination of a torture claim.  He also submitted that the court should carry out rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met and he should be given every reasonable opportunity to establish the claim.

11.  At the hearing of the appeal, the applicant had nothing to say.

Discussion

12.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14:

(1)  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision-makers are the Director and the Board.  Though in non-refoulement cases the court will adopt a heightened standard in scrutinizing the decision of the Board having regard to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information materials, risk of harm, state protection and viability of internal relocation are matters primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or his decision was otherwise plainly wrong.

13.  The applicant’s grounds of appeal are bare assertions without particulars, elaboration or evidence in support.  They do not constitute viable ground to reverse the judge’s decision.  The applicant failed to provide any explanation for the significant inconsistencies identified by the Board or provide evidence to rebut the Board’s findings.  He also failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision

14.  There is no merit in the appeal and no realistic prospect of success in the intended application for judicial review.  Therefore, the appeal should be dismissed.

[1][2020] HKCFI 1014

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of being arbitrarily deprived of life under article 2 of the Hong Kong Bill of Rights.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

[5] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.