Case Detail

HCAL 220/2017

[2019] HKCFI 649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 220 OF 2017

_____________________

BETWEEN
	Gulzar Muhammad	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	Director of Immigration	Putative Interested Party

_____________________

Before:

Hon Yau J in Chambers

Date of Hearing:	19 December 2018
Date of Judgment:	15 March 2019

_____________________

JUDGMENT

_____________________

1. On 22 January 2018, this Court (Hon Yau J) handed down a judgment by way of CALL-1 Form, dismissing the Applicant’s application for leave to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) which rejected his non-refoulement claim.

2. The facts and the issues in the application, as well as the reasons of the Court in refusing to give leave to the Applicant are set out in the judgement and the Court is not going to repeat them here.

3. According to Order 53 rule 3(4) of the Rules of High Court the Applicant has 14 days to appeal against the decision of the Court which expired on 5 February 2018. By a summons dated 25 October 2018 the Applicant applied for leave to lodge an appeal out of time.

4. There are ample authorities, such as Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134 and Wong YukManv. Ng Leung Sing & Anor [2016] HKCU 157, saying that in considering whether to extend the time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to:

(1) the length of the delay;
(2) the reasons for the delay;
(3) the prospect of the intended appeal; and
(4) the prejudice to the putative respondent if extension of time was granted

5. In this case the Applicant was late by more than 8 months. He explained in his affirmation that when he received the CALL-1 Form he had pleaded guilty to an offence of overstaying in Hong Kong and had been sentenced to imprisonment in Tai Lam Correctional Institution.

6. As he was fully occupied in his application to the Immigration Department for settlement in Hong Kong as a dependent of his wife who is a Hong Kong citizen and because of the stress and frustration he was going through, he was not aware that he still had a non-refoulement claim going on. When his application for settlement as a dependent was rejected he was advised by an inmate in the correctional institution that his non-refoulement claim had, according to the CALL-1 Form, been dismissed.

7. Due to the limited resources he had in the correctional institution he was late in lodging the application for leave to appeal against the decision of the Court in refusing his application for leave to apply for judicial review.

8. During the hearing on 19 December 2018, the Applicant repeated what he said in the affirmation and supplemented that he was not aware of the time limitation to lodge an appeal against the decision of the Court and he had been assisted by his wife and a friend to prepare this application.

9. The explanation given by the Applicant for the delay does not make sense at all. After receiving the CALL-1 Form it was impossible, even accepting the stress and frustration he was laboured under at that time, that he would not have asked others what was said in the Form if he could not read English himself. It will, however, become apparent in the latter part of this judgment that he in fact knows the language. His excuse that he only came to know what was said in the CALL-1 Form after his application for settlement as a dependent had been rejected by the Immigration Department is simply unsustainable.

10. When he came to know that his application for leave to apply for judicial review had been refused by the Court he naturally would have made efforts to find out what further step he could take. He had been able to find out that he could take the decisions of the Director and the Board to the Court of First Instance for judicial review, it is impossible that he would not have been able to find out that he could appeal against the decision of the Court refusing his application for leave to apply for judicial review. The delay of 8 months is totally unreasonable and the reasons given by the Applicant are untenable.

11. The prospects of the Applicant’s intended appeal against the decision of the Court is a crucial factor to consider in his application to extend time. Authorities such as Re MK HCMP 2609/2016, Islam Raja Rais v. Director of Immigration HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226 are relevant in this regard. The Applicant in his affirmation and during the hearing has not provided any ground of appeal. He has only given his reasons for the delay in filing the notice of appeal.

12. Subsequent to the hearing, the Applicant has written 4 letters to, and filed a further affirmation dated 22 February 2019 with, this Court. The letters do not contain anything about his ground of appeal and the affirmation is in exactly the same terms as the affirmation which was filed when the Applicant first made the application for time extension. They therefore do not add anything to the case of the Applicant and the letters which were written in English in the handwriting of the Applicant shows that the Applicant has a reasonable command of the language.

13. It is for the Applicant to satisfy the Court that his intended appeal has good prospects of success. The grounds advanced by the Applicant in his application for leave to apply for judicial review had been given due consideration by the Court which had come to the conclusion that there was neither procedural unfairness nor error of law in the decisions of the Director and the Board.

14. The Court is of the view that the intended appeal of the Applicant has no prospect of success and it serves no meaningful purpose to extend the time for appealing. The application for leave to appeal out of time is refused and the Applicant’s summons is dismissed.

	(Joseph Yau)
	Judge of the Court of First Instance
	High Court

Applicant appeared in person

Putative Respondent and Interested Party absent and not represented

HCAL 220/2017

[2018] HKCFI 67

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 220 of 2017

BETWEEN
	Gulzar Muhammad	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent 1
	Director of Immigration	Putative Respondent 2

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 oral submissions by the Applicant in open court;

Order by the Honourable Mr. JusticeYau :

Leave to apply for Judicial Review is refused.

Observations for the Applicant (Order by the Honourable Mr. Justice Yau):

1. The applicant is a Pakistani male, born in Village Jatlan, Mirpur District of Pakistan. He is married and his wife is a Hong Kong citizen living in Hong Kong. He worked as a labourer for about 4 years and a lorry driver for about 8 years in Pakistan.

2. In Pakistan farmers made use of a canal system in accordance with a roster to irrigate their farm land. On 7 or 8 May 2009, the applicant and his cousin, Imran, had a dispute with Mr Sadat Ali (“Ali”) because Ali insisted to irrigate his own farm when it was the rostered day for Imran to use the system. Imran refused to allow Ali to do so.

3. Ali owned 70% of the land in the vicinity of Village Jatlan and was famous and influential. He and 1 of the 2 men who accompanied him were armed and Ali shot Imran. The appellant ran away to tell his uncle. When they returned to the scene they found Imran unconscious. A report was made to the police and Imran died after admission to hospital.

4. The police took no action. The appellant suspected that Ali had bribed the police. When the appellant, his uncle and many villagers protested the police charged Ali with murder. Some villagers told the appellant that if he testified in court Ali would kill him. The appellant ignored the threat as he was determined to get justice for his cousin.

5. The trial was set down for 26 or 27 July 2009. A couple of weeks before that day the appellant was attacked in the street by 4 unknown men who threatened to kill him if he testified in court. On the night before the hearing, Ali and the same 4 men came to the appellant’s home and made the same threat.

6. On the day of the hearing, when the applicant was about to board a bus to go to court he was stopped and beaten up by the same 4 men and another 2 men with wooden rods for 15 minutes. They warned that things would go worse if he attended court. The applicant was taken to a clinic by a friend and he had a fractured finger and bruises which took a month to recover. It was too late for the applicant to go to court after the medical treatment. He made a report to the police about the attack but was told by the police that it was safer for him not to testify.

7. At the suggestion of his mother the applicant moved to another town called Hafiz Abad where he lived with his relatives for 11 days. He encountered no troubles there. He then moved to Rawalpindi. There were also no untoward incidents but he heard others saying that people were looking for him. Taking heed of the advice of his family and relatives the applicant left Pakistan by bus for China on 13 October 2009 with the help of an agent he met in Rawalpindi.

8. The applicant sneaked into Hong Kong from China on 27 October 2009 and was arrested by the police on the same day. He was referred to the Immigration Department and he lodged his torture claim on 29 October 2009. He was released on recognizance on 8 November 2009. On 26 January 2010 the applicant was arrested by the police for taking employment unlawfully. He was convicted of the offence on 24 February 2010 and sentenced to 2 months imprisonment. A removal order was issued against him on 22 April 2010 and served on him on 27 April 2010. He was released on recognizance on 1 May 2010 for his non-refoulement claim to be considered.

9. In connection with his non-refoulement claim, the applicant provided a Torture Claim Form and a Supplementary Claim Form and attended 2 interviews with an officer of the Immigration Department. He was assisted by the Duty Lawyer Service (“DLS”). His non-refoulement claim was refused by the Director of Immigration by a Notice of Decision dated 27 May 2016. His appeal/petition to the Torture Claims Appeal Board/Non Refoulement Claims Petition Office (“the Appeal Board”) which was lodged on 6 June 2016 was rejected on 5 May 2017 after a hearing.

10. According to the information the applicant received from his family, as a result the efforts of Imran’s family which included bribing the court, the murder case was still ongoing. A witness is, however, required to give evidence in the case. The applicant fears that his uncle will force him to testify against Ali while Ali has continued to tell his family that he will kill the applicant should he return to Pakistan. The applicant cannot be relocated to other part of Pakistan because Ali will employ people to locate him and kill him.

11. The applicant asserts that he is a person of low class with no money, land or political links and is unable to fight against Ali who is from a rich family with links to the ruling party of Pakistan.

Conclusion

12. I have considered the evidence and decisions of the Director of Immigration and the Appeal Board. They have looked into all the available grounds of non-refoulement claim of the applicant and I do not find any error in law or procedure.

13. The applicant submits in this application that he was not given any legal representation throughout his appeal/petition to the Appeal Board. While it is indeed the case that he was not legally represented in the appeal he was assisted by the DLS when his claim was being considered by the Immigration Department. Despite having no such assistance in the appeal/petition the Appeal Board had given full assistance to the applicant and had considered all aspects of his appeal/petition. The contention of the applicant that there was a clear violation of the principle of “high standard of fairness” has no merits.

14. The applicant complains that no language assistance was provided to him in his appeal/petition and when he was asked in a letter by the Immigration Department to provide additional facts or information to the department for consideration. He alleges that the letter was too technical for a layman like him whose first language is not English to understand. It must be pointed out that the letter of the Immigration Department though in English is not technical at all. It should not be difficult for the applicant to seek help to have the letter explained to him. The fact that the applicant is able to make a proper affirmation in English for this application serves as an example.

15. More importantly, despite no language assistance having been provided to the applicant his non-refoulement claim had been fully and fairly considered by the Immigration Department and the Appeal Board.

16. The applicant also relies on the ground that the Appeal Board has no reasonable basis to reject his credibility. This concerns the finding of facts by the Appeal Board and this court does not see any justification to interfere with it.

17. There are no reasonably arguable grounds to support the intended judicial review and there is no realistic prospect of success. Leave to apply for judicial review is refused.

Dated the 22^nd day of January 2018.

	(Kenneth TSANG)
	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);	Sent to the Applicant on 22/1/2018 Mr. Gulzar 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 22/1/2018 Torture Claims Appeal Board, Director of Immigration (Putative Respondents) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2) Respondent’s ref. no.: Torture Claims Appeal Board Ref.: USM 3856/16/6/46/P999& Immigration Department Ref.: QA T/C 348/16 (T7137) (formerly RBCZ 14402/15)
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)).

Form CALL-1

GULZAR MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER [Decision on Leave Application]

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