Case Detail

HCAL 1158/2017

[2019] HKCFI 1949

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1158 OF 2017

___________________

Re:

Habib Muhammad

Applicant

___________________

Before: Deputy High Court Judge Josiah Lam in Chambers

Date of Hearing: 21 September 2018

Date of Decision: 9 August 2019

___________________

D E C I S I O N

___________________

Application for leave to appeal out of time

1. The Applicant seeks leave to appeal out of time against my order dated 30 July 2018 in his application for leave for judicial review in HCAL 1158/2017.

2. The Applicant is a national of Pakistan. He is now aged 42 (DOB: 1 January 1977).

3. The Applicant claimed he would be killed by supporters of the Pakistan Muslim League (N group) [“PMLN”], which was the ruling party in Pakistan. The Applicant was a supporter of an opposition party, the Pakistan People’s Party (“PPP”).

4. The Applicant said he joined PPP in 1995. He had quit for some time before rejoining the party in 2014. He helped the party in campaign activities though he did not hold any position.

5. In 1995, the Applicant and some PPP members had a fight with the PMLN people. The PMLN people made false allegations to the police. The Applicant and his companions were then arrested by the police. They were detained for 22 days before being released on bail. The case dragged on but they were finally cleared of the accusations in 2000.

6. In August 2014, the Applicant was approached by the same group of PMLN people. They asked him to quit PPP to join PMLN. The Applicant refused. He was beaten up by those people. The Applicant did not report the matter to the police because PMLN was the ruling party. He believed the police were in favour of PMLN and it would be useless to seek help from the authorities.

7. Being in fear, the Applicant left home to live with his friend. However, he returned home secretly at times to see his children.

8. In November 2015, the Applicant was invited by the PPP leaders to go back to his village to help in the election campaign. One evening, he was approached by the same group of PMLN people. They again forced him to join them. They threatened to kill him if he refused. The Applicant was assaulted and got injured. He subsequently fled to stay with his friend and only returned home occasionally.

9. The Applicant feared he would be caught and killed by his enemies. On 10 March 2016, he left Pakistan for China. Several days later, he entered Hong Kong illegally. He subsequently sought non-refoulement protection.

10. In the ensuing two‑tier screening process, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively rejected the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture[1], (ii) risk of persecution[2], (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].

11. On 29 December 2017, the Applicant applied for leave for judicial review. The Applicant named the Board and the Director as respondents. That application was heard by me as HCAL1158/2017 on 7 June 2018. I refused to grant him leave to apply for judicial review. The order was issued on 30 July 2018.

12. Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the Applicant had 14 days to lodge an appeal. The appeal period expired on 13 August 2018. The Applicant failed to do so. He only applied for leave to appeal out of time by a summons taken out on 11 September 2018.

Reasons for being late

13. In his affirmation dated 11 September 2018, the Applicant said he was illiterate and did not understand the content of the court order. Nobody read the documents to him.

14. The Applicant claimed he still did not understand the order now. He said he did not file an appeal in time because he was not aware of the time limit.

Grounds of intended appeal

15. The Applicant had not produced any draft notice of appeal. There were no appeal grounds stated in his affirmation.

Hearing

16. The hearing took place on 21 September 2018. The Applicant was in person. A Punjabi interpreter provided service in court.

17. The Applicant said he got the court order dated 30 July 2018 somewhat late. He was illiterate. He could only find a boy to read the documents to him ten days after he had received them. Then he sought further assistance and finally found a friend who could help him to prepare the documents for the current application. It was a different friend from the one who had helped him to prepare Form 86 and his affirmation in the earlier application for leave for judicial review in December 2017.

18. The Applicant was asked to state his grounds of appeal to show he had a reasonable prospect of success of his intended appeal. I stood the matter down for him to organize himself. The Applicant was told he could ask the interpreter to write down the grounds of appeal for him.

19. When the hearing was resumed, the Applicant had merely asked the interpreter to write down for him to the effect that the court should consider his situation and give him more time to get some advice as to ‘what could be done further’ and ‘to get advice from a lawyer to know whether there is any solution to my case or not’. The Applicant stated no grounds of appeal there. He could not give any in court either.

20. I refused to adjourn the matter because the Applicant failed to offer any good reason for adjournment. He had already sought assistance from someone, who he called as friend. That ‘friend’ apparently was acquainted with the law as he had helped the Applicant to prepare an affirmation dated 11 September 2018 in proper form for the current application. The Applicant could not persuade the court that an adjournment would serve any useful purpose.

Discussion

21. In considering whether to extend time for appealing against an order to refuse leave for judicial review, the court will have regard to: (i) the length of delay; (ii) the reasons for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the putative respondent if extension of time was granted.[5]

22. On 30 July 2018, I refused to grant leave to the Applicant to apply for judicial review. The Applicant failed to file an appeal within 14 days. He said he received the CALL-1 form and court order somewhat late. He said he was illiterate and had to find someone to help him to understand the documents. On 11 September 2018, the Applicant filed a summons to apply for leave to appeal out of time. He was late for about 4 weeks.

23. The Applicant did not say clearly when he actually received the CALL-1 form and court order dated 30 July 2018. Even if I were to accept he received the documents late and had reasons for his delay which was not a long one, the Applicant still failed to show he had a reasonable prospect of success which is a crucial assessment in an application for leave to appeal out of time.[6] He could provide no grounds of appeal at all.

24. It is said in Nupur Mst v Director of Immigration[2018] HKCA 524 that in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant and the prospect of an appeal is assessed by reference to his intended grounds of appeal. The Court of Appeal would not examine the decision of the Board afresh as if it is a fresh application for judicial review.

25. It is also stated in Re Islam Rafiqul that “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 applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.”[7]

26. The Applicant failed to state any viable ground of his intended appeal for the Court of Appeal to consider that my order dated 30 July 2018 should be reversed.

Conclusion

27. I refuse to grant the Applicant leave to appeal out of time because he fails to show he has any viable ground to argue and thus fails to show any reasonable prospect of success of his intended appeal. The summons dated 11 September 2018 is therefore dismissed.

	(Josiah Lam)
	Deputy High Court Judge

The Applicant appeared in person.

[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.

[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] See Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Suk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016).

[6]Re AKBAR MD FAISHAL[2018] HKCA 566, para 13.

[7][2018] HKCA 570, para 14(2).

HCAL1158/2017

[2018] HKCFI 1675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1158 of 2017

BETWEEN

	Habib Muhammad	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

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

Following;

consideration of documents only
consideration of documents and oral submission by the Applicant in open court

Order byDeputy High Court Judge Josiah Lam:

Leave to apply for judicial review be refused.

Observations for the Applicant

Background

1. The Applicant is a national of Pakistan. He is now aged 41 (DOB: 1 January 1977).

2. The Applicant claimed he would be killed by supporters of the Pakistan Muslim League (N group) [“PMLN”], which was the ruling party in Pakistan. The Applicant himself was a supporter of an opposition party, the Pakistan People’s Party (“PPP”).

3. The Applicant said he joined PPP in 1995. He had quit for some time before rejoining the party in 2014. He helped the party in campaign activities though he did not hold any position.

4. In 1995, the Applicant and some PPP members had a fight with the PMLN people. The PMLN people made false allegations to the police. The Applicant and his companions were then arrested by the police. They were detained for 22 days before being released on bail. The case dragged on but they were finally cleared of the accusations in 2000.

5. In August 2014, the Applicant was approached by the same group of PMLN people. They asked him to quit PPP to join PMLN. The Applicant refused. He was beaten up by those people. The Applicant did not report the matter to the police because PMLN was the ruling party. He believed the police were in favour of PMLN and it would be useless to seek help from the authorities.

6. Being in fear, the Applicant left home to live with his friend. However, he returned home secretly at times to see his children.

7. In November 2015, the Applicant was invited by the PPP leaders to go back to his village to help in the election campaign. One evening, he was approached by the same group of PMLN people. They again forced him to join them. They threatened to kill him if he refused. The Applicant was assaulted and got injured. He subsequently fled to stay with his friend and only returned home occasionally.

8. The Applicant feared he would be caught and killed by his enemies. On 10 March 2016, he left Pakistan for China by air. Several days later, he entered Hong Kong illegally from China by boat. He subsequently sought non-refoulement protection.

9. The Applicant did not believe the Pakistan police could protect him because they were corrupt and would follow the orders of PMLN.

10. The Applicant also did not think internal relocation was viable. He said the PMLN people were powerful and had networks to locate him in the country.

11. In the ensuing two-tier screening process here (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].

12. On 29 December 2017, the Applicant applied for leave for judicial review.

Chronology of events

13. Things happened in this order: –

2016-3-10 The Applicant left Pakistan for China.
2016-3-18 The Applicant entered Hong Kong from China by boat illegally.
2016-3-23 The Applicant raised a non-refoulement claim.
2016-6-23 The Director interviewed the Applicant.
2016-8-17 The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Director's decision’]
2017-3-21 The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2017-4-4 The Applicant failed to submit additional facts by the deadline or thereafter.
2017-4-6 The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision’]
2017-11-13 The Applicant appeared before the Board for appeal.
2017-11-24 The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision’]
2017-12-29 The Applicant applied for leave for judicial review.

Respondents

14. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.

15. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.

16. An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]

17. In the present case, the Director's decision and further decision were more than three months old by the time the Applicant filed his current application on 29 December 2017. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 24 November 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the two Director's decisions albeit late on 29 December 2017; the application against the Board's decision was made in time.

Director of Immigration (the Director)

18. In the Director’s decision dated 17 August 2016, the immigration officer did not make specific findings on the Applicant’s credibility. However, even on the strength of the Applicant's allegations the officer considered the risk of the Applicant’s being harmed or killed by the alleged enemies was low. The Applicant had not been inflicted with ill-treatment to a minimum level of severity.

19. The officer was aware there were reports of police corruption and ineffectiveness in Pakistan. However, there was objective country-of-origin information (“COI”) showing the Pakistan government had taken practical steps to improve the situation. The officer was satisfied reasonable state protection was available to the Applicant. Internal relocation was also viable.

20. The officer did not accept there was any real torture risk, persecution risk andCIDTP risk (BOR3 risk) that warranted non-refoulement protection. He refused the Applicant’s claim with respect to those three applicable grounds.

21. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (BOR2 risk). However, the Applicant did not respond by the deadline or thereafter.

22. In the Director’s further decision dated 6 April 2017, the officer considered that the Applicant was not entitled to life risk protection because he failed to establish there was a personal and real BOR2 risk. He refused the Applicant’s non-refoulement claim with respect to the fourth ground: life risk (BOR2 risk).

TCAB/NCPO (the Board)

23. The Adjudicator found there were inconsistent and unreliable features in the Applicant’s allegations. He did not find the Applicant's claim credible. He was not satisfied the Applicant would face any real risk that warranted non-refoulement protection.

24. The Adjudicator agreed with the Director’s finding that reasonable state protection and internal relocation were available in the Applicant’s case.

25. The Adjudicator refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).

Grounds of judicial review

26. In his affirmation, the Applicant complained: –

(a)     lack of legal representation;
(b)     lack of language assistance;
(c)     wrongful exercise of case management power;
(d)     lack of fair hearing.

Court hearing

27. In Form 86, the Applicant requested a hearing. The hearing took place on 7 June 2018. The Applicant was in person. A Punjabi interpreter provided interpretation service in court.

28. The Applicant said he did not know English. A friend helped him to prepare Form 86 and the affirmation. The Applicant confirmed that all the grounds of judicial review were in the documents. He was asked to elaborate his grounds of application or complaints against the Director and the Adjudicator. He did not.

29. The Applicant said he had not received the Director’s letter dated 21 March 2017 inviting him to submit additional facts for the consideration of BOR2 risk. He also said he had not received the Director's further decision dated 6 April 2017 although he had been living at the Boundary Street address stated on that decision notice up to June 2017.

Discussion

30. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

31. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6]

Lack of legal representation

32. The Applicant complained that he was not provided with legal assistance after the Director's decision coming out on 17 August 2016. He had been provided legal assistance by the Duty Lawyer Service till then.

33. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[7] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

Lack of language assistance

34. The Applicant complained that he had not been given sufficient interpretation/translation assistance.

35. In court, the Applicant said a friend helped him to prepare Form 86 and the affirmation for the current application of judicial review. Apparently, the Applicant could seek language assistance when necessary. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents. His suspicion that the interpreter might have mistranslated/misinterpreted the basis of his claim in the non-refoulement claim form (“NCF”) was mere speculation. That cannot be a proper ground of complaint.

Wrongful exercise of case management power

36. The Applicant quoted a certain part of paragraph 8 of the Director’s further decision dated 6 April 2017 “As your appeal/petition to the TCAB/NCPO is still pending determination, the arrangements mentioned in our letter dated 21 March 2017 shall apply, i.e. the TCAB/NCPO will determine your appeal/petition on all applicable grounds in one go. There is no need for you to file a separate and further petition to the NCPO.” He then accused the Director and the Board were not interested in the grounds of his appeal and simply wanted to determine his appeal in one go.

37. The Applicant was misconceived. The Director was only informing the Applicant that he need not file a separate appeal. The Applicant was not estopped from filing further grounds, if he had any. The Applicant had not shown he actually had further grounds of appeal that could have been filed to the Board.

Lack of fair hearing

38. The Applicant again complained about insufficient legal assistance and language assistance. These two issues have just been dealt with.

39. The Applicant said he had not received the Director’s letter dated 21 March 2017 inviting him to submit additional facts for the consideration of BOR2 risk. He also said he had not received the Director’s further decision dated 6 April 2017 although he had been living at the Boundary Street address stated on that decision notice. It was odd if the Applicant really had not received those correspondences. However, the Applicant failed to show the court how his claim with respect to BOR2 risk had been prejudiced. He could not establish that he had more proofs to produce or submissions to make for the Director’s consideration of BOR2 risk.

40. The Applicant last criticised the Director’s absence from the appeal hearing on 13 November 2017. Again, the Applicant failed to show how the Director’s absence would prejudice his appeal.

41. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

42. The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.

Dated 30^th day of July 2018

(Alan Ngan)
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

Notes for 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 30/7/2018

Habib Muhammad

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 30/7/2018

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1^st Putative Respondent’s ref. no.:
USM 4581/16/8/300/P1110

Director of Immigration
2^nd Putative Respondent’s ref. no.:
QA T/C 1035/16 & RBCZ 9000664/17 (formerly RBCZ 11241/16)

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

Form CALL-1

[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.

[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] Order 53, rule 4 of the Rules of the High Court.

[6]Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[7] CACV 284/2017 Re: Paswan Shibu Lal, para 21.

HABIB MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER [Decision on Leave Application]

Related cases with same parties

Files (2)

	consideration of documents only
	consideration of documents and oral submission by the Applicant in open court

2016-3-10	The Applicant left Pakistan for China.
2016-3-18	The Applicant entered Hong Kong from China by boat illegally.
2016-3-23	The Applicant raised a non-refoulement claim.
2016-6-23	The Director interviewed the Applicant.
2016-8-17	The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Director's decision’]
2017-3-21	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2017-4-4	The Applicant failed to submit additional facts by the deadline or thereafter.
2017-4-6	The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision’]
2017-11-13	The Applicant appeared before the Board for appeal.
2017-11-24	The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision’]
2017-12-29	The Applicant applied for leave for judicial review.