Case Detail

HCAL 1104/2017

[2019] HKCFI 294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1104 OF 2017

___________________

BETWEEN
	MEHMOOD IKHLAS	Applicant
and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

___________________

Before:

Hon Campbell‑Moffat J in Chambers

Date of Hearing:	31 January 2019
Date of Decision:	31 January 2019

________________________

D E C I S I O N

________________________

Introduction

1. This is an application filed on 27 November 2018 seeking leave to appeal out of time against an Order of this court dated 12 November 2018, refusing to extend the period for making an application for leave to apply for judicial review. However, the Order of this court dated 12 November 2018, was not an order of refusal to extend time but an order refusing leave to apply for judicial review. The hearing proceeded on the correct basis i.e. as an application to extend time to appeal the decision of this court to refuse leave to apply for judicial review.

2. The applicant had 14 days in which to apply to appeal the Order of 12 November 2018. He did not do so. He now requires leave to extend time to appeal against that Order. The applicant is unrepresented and attended court for the hearing. The court has taken some time to explain the current proceedings and the issues which have arisen.

Procedural background

3. The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. He entered Hong Kong illegally on 22 October 2013 and was arrested by the police on 15 January 2014. He submitted a non‑refoulement (“NRF”) claim on 16 October 2015 and was interviewed by the Director of Immigration (“the Director”) on 8 December 2015. The Director dismissed his claim under all heads, by Notices of Decision on 17 February and 28 November 2016. Under section 37ZS of the Immigration Ordinance, Cap 115, the applicant had 14 days in which to lodge an appeal from the Decision or Further Decision of the Director. He did not do so. He lodged his appeal on 3 February 2017. His appeal against the Director’s Decision was almost a year out of time and his appeal against the Further Decision (in respect of BOR 2), was over two months from that decision. The appeal, being out of time, was considered by the adjudicator of the TCAB, Mr Ronald Cheung (“the Adjudicator”), in respect of extension of time to appeal. He dealt with that issue on the papers. There being no satisfactory explanation for his delay, the Adjudicator refused his application for extension of time on 10 August 2017.

4. The applicant filed a notice of application on a Form 86 dated 19 December 2017, seeking leave to apply for judicial review of the Decisions of the Director only and did not request an oral hearing. The matter was therefore considered on the papers. His application for leave to apply for judicial review was refused on 12 November 2018 for the reasons given therein. He had 14 days from that date to appeal that decision, which would have expired on 26 November 2018. By way of summons filed on 27 November 2018, he now seeks leave to appeal out of time.

5. An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)). The applicant may appeal as of right. However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order has to observe the time limits for appeal under Order 59, rule 2B which allows 14 days. Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59 rule 15. In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of, and explanation for, the whole of the delay since time expired. Although the applicant was only late by one day, the granting of an extension of time is entirely within the discretion of the court. No appeal may be maintained without it. The applicant is required firstly to explain the reasons for his delay. The court will look at those reasons as well as the length of the delay, but will also consider the underlying merits of the applicant’s appeal in order to ensure that the judicial process is applied fairly and with due regard to wasting court time.

6. Dealing firstly with the delay before this court in seeking an extension of time to appeal. The applicant has not addressed this issue in his Affirmation in support. He appears to be unaware of it. Indeed, and unfortunately, the Affirmation is somewhat confusing as the applicant is seeking leave to appeal against an order refusing to extend time for leave to apply for judicial review. This court did not refuse to extend time for leave to apply for judicial review. This court refused leave to apply for judicial review.

7. As to the issue of delay, at para 4 of his Affirmation in support, the applicant states: “I am not aware of the time limit. I have never been involved in any court proceedings in my entire life”. This is not entirely correct. Whilst the proceedings he has instituted in Hong Kong may be the first he has been involved in, he has been concerned in them since his NRF dated 16 October 2015 and he certainly realises the consequences of delay as he does not seek to appeal the refusal to grant an extension of time by the Adjudicator. The applicant maintains that his application to appeal my decision was delayed because, despite requests for assistance, the court staff were singularly unhelpful and that he was prejudiced thereby. He maintains he was particularly prejudiced by the lack of assistance in interpreting the Call-1 and Order and in understanding the procedure to be adopted thereafter. Even so, and despite assistance by this court, he has not been able to identify any grounds of appeal in respect of the decision of this court to refuse leave. He simply does not want to return to Pakistan.

8. The role of the Court of Appeal in judicial review is not to provide a further avenue of appeal. The primary decision makers were the Director and the Adjudicator. The Court of Appeal will not intervene unless the appellant can show that there has been an error of law or procedural unfairness or irrationality in the decision of the Director, the Adjudicator or this court in reviewing the same. Where there is a refusal of leave by a judge of the Court of First Instance, an appeal from that refusal is not an opportunity to repeat any arguments advanced and rejected by the judge nor it is an opportunity to raise argument not placed before the judge. In an appeal against refusal of leave, the Court of Appeal will only examine the decision of the judge in the light of the grounds advanced by the applicant.

9. Before me, the applicant has not sought to advance any argument for the consideration of the Court of Appeal. There has been no complaint raised against the decision of this court. The Court of Appeal would only reverse the decision of this court if the applicant can demonstrate that there were errors in law; that this court failed to take into account relevant matters; or the decision was otherwise plainly wrong.

Conclusion

10. Despite the fact that the applicant has not advanced any grounds of appeal, I have nevertheless considered his underlying application and any reasons he may have on appeal from my refusal of leave. His underlying claim had no merit, as explained at some length in the initial refusal of leave. There were extensive grounds of review in respect of the decisions of the Director and the Adjudicator, which were identical to grounds of review often submitted but without any causal connection to the underlying facts. There has been no complaint before this court in respect of the decision to refuse leave. The applicant merely wishes the Court of Appeal to consider his situation afresh as he is unhappy with the decision of this court and does not want to return to his own country. Having considered the length of delay, even though minimal, the reason for the delay and, more importantly, the underlying merits of his application both below and on appeal, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

11. The applicant’s summons filed on 27 November 2018 be dismissed.

	(A P Campbell‑Moffat)
	Judge of the Court of First Instance
	High Court

The applicant appeared in person.

HCAL 1104/2017

[2018] HKCFI 1837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1104 of 2017

BETWEEN

	Mehmood Ikhlas	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of the documents only; or
consideration of the documents and the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell-Moffat:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1. The Applicant entered Hong Kong illegally on 22 October 2013 from China and was arrested by the police on 15 January 2014. The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 19 January 2014. He was released upon recognisance on 6 February 2014. His NRF claim form was submitted on 16 October 2015.

2. The Applicant attended a screening interview on 8 December 2015. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 17 February 2016 and by Notice of Further Decision (re BOR 2) on 28 November 2016. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) against both Decisions on 3 February 2017 which was out of time by almost a year from the Decision and over two months from the Further Decision. The Adjudicator of the TCAB, Ronald Cheung, considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 10 August 2017.

3. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 19 December 2017 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

4. The Applicant is a Pakistani national. He was born on 1 May 1985 in Sakrana, Rawalpindi. He is single and a Sunni Muslim. He is not a member of any political party. Between 2003 and 2010, the Applicant worked as a freelance truck driver and was thereafter unemployed until 2013. His claim arises out of a land dispute with a Shia Muslim “MN”, who was a member of the Pakistan Muslim League-N (“PMLN”).

5. The land in question had originally been owned 75/25 between the Applicant’s father and R. R transferred her ownership in the land to the father and in return received part of the crop. MN was R’s brother and wanted the land transferred back to R, so that, upon her demise, MN and his family would inherit it.

6. The dispute first arose in mid-2013, when MN and his two sons threatened to kill the Applicant’s father unless he transferred the land beck to R. A report was made to the police but as this was a private matter, the police refused to file a First Report (“FR”). MN repeated his threat four days later and once again the family sought to file an FR but the police refused for the same reason as before.

7. As a result of the threats the Applicant and his brother left the village but the father remained behind to look after their property interests. The Applicant found work in a factory in Lahore and lived in the factory dormitory. There were no further incidents during the three months in which the Applicant worked in Lahore although his brother had ended up in a fight with MN in his home village in August, during which MN once again threatened bad consequences to the Applicant’s family. During this period, the applicant’s father remained in the family home and was not harmed.

8. The Applicant fled to Guangzhou on 9 October 2013 on the strength of his own passport and entered Hong Kong on 22 October illegally.

The non-refoulement claim

9. Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be assessed on all applicable grounds which are:

i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”). Under torture risk, the Applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.
ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”). Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state. The level of such mental or physical torture etc. must reach a minimum level of severity.
iii. Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”). Under “persecution risk”, the Applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.
iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”). Under BOR 2, the Applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

10. It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of his claim. The Director and Adjudicator must then assess the level of harm the Applicant says he fears. Each ground of claim above has a relevant level of risk. It is for the Applicant to establish that he is the subject of such risk. Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”. The question is whether there is a real riskor real chance of the occurrence or recurrence of the harm which he fears.

Decision and Further Decision of the Director

11. The applicant seeks to review the Decisions of both the Director and the Adjudicator. As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the board has been pursued by the claimant and dealt with.

Decision of the Adjudicator

12. The Applicant failed to provide a satisfactory reason for the delay in submitting his Notice of Appeal against the Decision and Further Decision of the Director as can be seen from the findings of the Adjudicator at paragraphs 19 and 20 of his Decision. The Adjudicator analysed the legal principles relating to late filing and he canvassed the appropriate authorities. I the absence of any explanation and taking into account the papers before him, he cannot be criticised.

Leave to apply for Judicial Review

13. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decision of the Director of Immigration. The Applicant has not endeavoured to appeal the decision of the Adjudicator as to his refusal to allow filing out of time. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of Review

14. This Applicant has exactly the same Grounds of Review as Mirza Muhammad Mohsin in HCAL 1109/2017. The Applicant submitted the following Grounds:

1) the Director failed to consider the concept of state acquiescence, or extended state acquiescence;
2) he made insufficient enquiry;
3) failed to provide adequate reasons as to the decisions made;
4) failed to investigate the COI material;
5) failed to place weight on relevant information;
6) placed weight on irrelevant information;
7) failed to consider a consistent system of human rights violations;
8) placed weight on irrelevant matters, or on inaccurate or incorrect facts;
9) failed to call for psychological or psychiatric reports;
10) applied the incorrect standard of proof;
11) provided no reasonable basis for rejecting the Applicant’s credibility;
12) the decision maker was not the interviewer; and
13) there was no proper basis for consideration of internal relocation.

15. In so submitting, the Applicant adopted a scatter gun approach apparently adopting as many general points as he could find without any evidential support. This has not assisted him as it is unclear if he intends those same grounds to be applied to the refusal to allow him to appeal out of time. The Applicant has a duty to state the grounds of his intended judicial review succinctly and to show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. Merely reciting oft cited phrases from the authorities is of little use to the court without more.

16. This was a private land dispute between the Applicant’s father and MN involving three minor incidents, two of which were verbal threats only. Grounds 1, 7, and 9 are not relevant to the factual basis of his claim. These grounds are without merit. As far as Ground 2 is concerned, the Applicant was the subject of interview by the Director. If there was further information he wished to submit for consideration he was given an opportunity to do so and could have raised new material before the Director, which he did not do. The burden is upon the Applicant to make out his case and it is not for the decision maker to guess what that case is. Ground 2 is also without merit. For the reasons given above at paragraphs 11 and 12, above, Grounds 3 to 6, 8, 10, 11 and 13 are also wholly without merit. As for Ground 12, the interviewer held the delegated authority to act on behalf of the Director and this is no longer appealable in any event.

Conclusion

17. I have considered the papers and grounds carefully. I have not found any error of law or procedure. Quite the opposite. The Adjudicator was at great pains to explain his reasoning in respect of the legal principles applied to his decision. 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 Adjudicator took the Applicant’s case at its highest when applying the criteria applicable to granting an extension of time. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

18. 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.

Dated 12^th day of November 2018.

(Ms Queenie Mak)
for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notesfor the Applicant:

If leave has been granted, the Applicant or his solicitors must:

a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);

b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and

c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).

Sent to the Applicant on 12/11/2018
Mehmood Ikhlas

Applicant’s ref. no:
Nil.

Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12/11/2018

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6077/17/2/76/P1322
BOR 101/17/2/10/P33

Director of Immigration
Putative Interested Party’s ref. no.:
INCZ 9000515/16 (formerly RBCZ 1257/14)

Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)

Form CALL-1

MEHMOOD IKHLAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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