Case Detail

HCAL 501/2017

[2021] HKCFI 971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 501 OF 2017

______________

BETWEEN
	KAMRAN	Applicant
and
	DIRECTOR OF IMMIGRATION	Respondent

______________

Before: Deputy High Court Judge To in Chambers

Date of Hearing: 30 March 2021

Date of Decision: 22 April 2021

____________________

DECISION

____________________

Introduction

1. This is the Applicant’s application by summons dated 17 November 2020 for extension of time to appeal the decision of Deputy High Court Judge Woodcock dated 8 May 2018 (the “Decision”) or to reconsider his application for leave to apply for judicial review afresh. The reason he put forward in the summons was he had changed his home address and hence could not receive the court’s letter.

2. He departed Pakistan for Mainland China and then illegally entered Hong Kong on 1 November 2012. He was arrested on 24 April 2013 for having remained in Hong Kong after entering unlawfully and for using an identity card belonging to another. He lodged a non-refoulement protection claim. That was rejected by the Director of Immigration (the “Director”). His appeal to the Torture Claims Appeal Board (“TCAB”) was dismissed on 28 July 2017.

3. Then he filed a notice of application for leave to apply for judicial review on 8 August 2017. He had an oral hearing on 2 January 2018. On 8 May 2018, DHCJ Woodcock refused his application.

4. Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. By 22 May 2018, the time to appeal has expired. The application for leave to appeal is two and half years out of time. The delay is grossly inordinate.

5. In Jagg Sing and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^{^[1]}, the Court of Appeal held that in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

Length of the delay and reasons for delay

6. In his affirmation in support, the grounds he advanced in support of his application are that the decision of the Torture Claims Appeal Board and the Decision of DHCJ Woodcock are all unlawful. He gave no explanation for the inordinate delay of over two and half years or particulars of his change of home address, the circumstances and when he came to know about the Decision. Rather than dealing with his application on paper or giving directions for filing of further affirmation, I set the application down for an oral hearing so that the merits of his application could be fully explored.

7. At the hearing, the Applicant just apologised and repeated his assertions in his affirmation. When specifically asked why he took such a long time to apply, he said he received the letter from court notifying him of the result late and he had to ask his friend (presumably about the content of the letter or the Order of DHCJ Woodcock). In an attempt to assist him to make out his case of having moved before the date of the Order of DHCJ Woodcock, he was asked about his addresses at various times. He was confused and unable to answer. Hence, I adjourned the hearing and gave direction for him to file an affirmation setting out his various addresses since 28 July 2017, ie the date when TCAB dismissed his appeal against the decision of the Director. The address he used on that day as well as on his application for leave to apply for judicial review filed on 8 August 2017 was Flat/Room C, 3^rd floor, Sum Ming Building, 264-270 Yu Chau Street, Sham Shui Po (the “Sum Ming Building Address”).

8. The Applicant did not file an affirmation as directed, but wrote to the court on 7 April 2021. In the letter, he gave four addresses.

9. He said he lived in an address in Fuk Wa Street during the period from 2016 to May 2017. This address is irrelevant. It was his address before he applied for leave to apply for judicial review.

10. He said he next lived at the Sum Ming Building Address from June 2017 to March 2018, which covered up to two months prior to the issue of the Order of DHCJ Woodcock.

11. The next address he gave is an address in Castle Peak Road which he used from April 2019 until to-date. He deliberately left out the address for the period from March 2018 to March 2019 when the Order of DHCJ Woodcock was issued. The Applicant is not entirely honest with the court in explaining his delay of two and half years. He has not given any satisfactory reason for the delay.

12. Even accepting (which is not the case) the Applicant had really changed his address and could not have received the Order of DHCJ Woodcock, this does not excuse the Applicant. As was held in Re Karamjit Singh^{^[2]}, it is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant: see Islam Raja Rais v Director of Immigration^{^[3]}, Said Umair v Torture Claims Appeal Board^{^[4]} and Re Saqlain Muhammad^{^[5]}.

Prospect of the intended appeal

13. The Applicant’s case is as follows. He was born in 1985 in Punjab. In mid-2012 when he was in his late twenties, he was kidnapped by the Taliban who forced him to join them and he would become a terrorist planting bombs for the Taliban. He escaped and returned home. He felt he was being sought after by the Taliban. He took his family to his parents-in-law’s home. He continued to be mentally tortured by the fear that the Taliban would locate him. Then he fled to Hong Kong.

14. The Director as did the TCAB analysed the Applicant’s case and considered his claim under all applicable grounds. DHCJ Woodcock considered with rigorous examination and anxious scrutiny the papers and grounds of the Applicant’s application and submissions. She was satisfied that the Director and TCAB had considered the Applicant’s claim under all four applicable grounds. In particular, she was satisfied that TCAB had correctly set out the law and key legal principles applicable to the four grounds. The TCAB had set out the evidence of the Applicant and the TCAB’s assessment of his credibility. It found his account of having been kidnapped by unnamed terrorists implausible and gave full reasons for its conclusion after set out the material inconsistencies in his evidence. The TCAB found he was not a genuine claimant and there were other inconsistencies in his account which undermined his credibility leading the TCAB to conclude that he had not been kidnapped or harmed by a terrorist group. The TCAB therefore concluded that if he returned to Pakistan, he would not be harmed by terrorists. DHCJ Woodcock was satisfied that the TCAB’s decision was utterly without fault and there was no substance in the Applicant’s grounds in his application for leave for judicial review.

15. The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinise the TCAB’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration[6].

16. An application for judicial review is not a rehearing of the decision of the TCAB. It is for the Applicant to raise grounds warranting relief on judicial review. At the hearing before me, the Applicant merely repeated his bald assertions that all the decisions were unlawful and his life would be in danger if returned to Pakistan. Having critically scrutinised the TCAB’s decision as had DHCJ Woodcock, I am unable to find any arguable errors of law, procedural unfairness or irrationality on the part of the TCAB. In my view the intended appeal has no prospect of success.

Prejudice to the respondent

17. As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time. But it would take little to persuade the court the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed after such a gross inordinate delay of two and half years. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge to proceed would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. This application does not raise any questions of general public importance. It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

18. In summary, the delay of two and half years in making this application is inordinate and by any standard undue. The Applicant could offer no credible valid explanation for the delay.

19. On the question of merit of the substantive application, I am unable to find any ground that shows there was any error of law by the TCAB or irrationality in its fact finding. There was no procedural unfairness. Indeed, the court is of the view that the TCAB adhered to a high standard of fairness. The TCAB’s decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable. The Applicant’s claim is not reasonable arguable. The intended appeal has no realistic prospect of success.

20. To allow the challenge to proceed would encourage other claimants to indulge in such abuse and create grave prejudice to the intended respondent and to the administration. The Applicant only has himself to blame for the delay.

21. For all these reasons, the application for extension of time is refused.

	( Anthony To )
	Deputy High Court Judge

The Applicant appearing in person

[1] CAMP 64/2020; [2020] HKCA 844

[2][2] CACV 78/2018 (unreported) 2 August 2018

[3] HCMP 881/2017 (unreported) 26 June 2017

[4][2018] HKCA 82

[5][2018] HKCA 346

[6][2018] HKCA 524 at [14(1)].

HCAL501/2017

[2018] HKCFI 903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 501 of 2017

BETWEEN

	Kamran	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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1. The applicant is a Pakistani national who claims to have entered Hong Kong illegally on 1 November 2012. He was arrested on 24 April 2013 for having remained in Hong Kong after entering unlawfully and for using another person’s identity card. After his arrest he then lodged a non-refoulement protection claim. This was rejected by the Director of Immigration (“Director”) on 16 May 2016 and 11 April 2017. The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 28 July 2017. The applicant then filed a notice of application for leave to apply for judicial review on 8 August 2017 and requested an oral hearing which was set down for 2 January 2018; the applicant appeared in person.

2. The basis of the applicant’s claim was that if he returns to Pakistan he will be harmed or killed by the Taliban. Both the Director and the adjudicator of the TCAB set out his evidence and claim in detail in their decisions therefore, I only intend summarise it here.

3. The applicant was born in 1985 in the Punjab, had four years of primary education, is married with two children and made money by buying milk from farmers to sell to businesses and homes in the city. In mid-2012 he was kidnapped by the Taliban, taken to a locked room where they demanded he join them, they would train him and he would become a terrorist and plant bombs for the Taliban. When he refused he was beaten up. The applicant managed to escape the next day by breaking a window. He reached a road, borrowed a phone from a stranger and phoned a friend who was a police officer. He had a few stitches to a head wound at a clinic. His police friend told him that the police would not be able to help because they were afraid of the Taliban.

4. After he went home he felt that the Taliban were following him and asking other villagers about him so he decided to leave his village a few weeks later. He took his family to his parents-in-law’s home. The applicant continued to be mentally tortured due to fear that the Taliban would locate him there or anywhere and his life was in danger so his friend advised him to flee to Hong Kong. The applicant departed Pakistan for Mainland China by bus and then after he crossed the border he took a train to Shenzhen. He then illegally entered Hong Kong by bus on 1 November 2012. He did not lodge a claim before his arrest because he did not know how to. His family have told him that the Taliban have been to his house in Pakistan looking for him since he left the country.

5. The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a) risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);
(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);
(c) risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and
(d) risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

6. The adjudicator conducted an oral hearing and treated the appeal as a rehearing. She correctly set out the law and key legal principles applicable to the four grounds. She set out the evidence of the applicant and her assessment of his credibility. She found his account of being kidnapped by unnamed terrorists implausible. She gave full reasons for her conclusion and set out his material inconsistencies in her decision. She found he was not a genuine claimant, in addition, there were also other inconsistencies in his account which undermined his credibility further, leading her to conclude he had not been kidnapped or harmed by a terrorist group and if he returned to Pakistan, he would not be harmed by terrorists.

7. As a result of her findings, the adjudicator found the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim. She confirmed the decision of the Director.

Leave to apply for judicial review

8. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. She analysed the material, claim and evidence carefully. The applicant’s complaints against her and the procedure undertaken are not made out. I find no substance in the grounds of this application.

9. The applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in his Form 86. There is only one ground in his affirmation directed at the Director; he has failed to give sufficient reason for rejecting the applicant’s BOR 2 claim. I will refer to this ground later but it has no merit.

10. I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. The applicant would have covered all mistakes he says the Director made in his appeal to the TCAB. Anyway, the TCAB would have looked at it to ensure no errors as it treated his appeal/petition as a rehearing. To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances do not arise here.

11. The supporting affirmation lists the following as grounds for seeking leave:

(1) his lack of legal representation before TCAB/miscarriage of justice;
(2) the lack of language assistance given to him/inability to read Immigration Department letter/procedural unfairness;
(3) insufficient reason given for rejection of BOR 2 risk by the Director; and
(4) procedural irregularity/no immigration department representative at the appeal.

12. The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk. The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director. Once the Director dismissed his claim the applicant received no further free legal advice or assistance. The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

13. It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44. That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim. That approach for the adjudicator is paramount and cannot be stressed enough. However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice. The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases. Their assessment is on a case-by-case basis.

14. The applicant’s second ground is also without merit. In it, he complains the duty lawyer service is saving costs and refused to translate his “Answer 35” of his non-refoulement claim form despite his request for it. Without it he cannot confirm whether or not the basis of his claim written in English is accurate and that was the purpose of his request. That form was completed with the assistance of a legal representative and an interpreter. During the process, interviews and appeal, there does not seem to have been any reason to suspect his claim was not translated properly. If there had, the applicant would have been able to particularise it. There is no merit in this ground or complaint.

15. The applicant’s third ground although directed at the Director I will still deal with it. He suggests no reasons were given for rejecting the BOR 2 risk claim. The notice clearly refers to the Director’s findings in his previous decision of 16 May 2016 and applies it to Article 2. He rejected the applicant’s BOR 2 risk claim in light of the assessment on the risk of his feared treatment as set out in that previous decision. In any event, it was never the applicant’s case that he was at risk of harm from capital punishment inflicted by the government or that he faced harm from his government that would put his life at risk. Even if this was an application applicable to the Director, this ground would have no merit.

16. The last ground criticises the Director’s Department for not sending a representative to the appeal hearing. The Director would have submitted submissions to the TCAB as well as the applicant and asked to be excused. There is no procedural impropriety or unfairness to the applicant.

17. In that last ground the applicant does submit the Director rejected his BOR 2 claim without an interview and he assumed the applicant received the previous letter inviting him to submit information and was able to read, understand and interpret it. However, when this letter was referred to during the hearing, the applicant denied he did receive this letter because he had a problem with the postbox and mail in the building he was living in at the time. When it was pointed out to him that paragraph 10 of his affirmation confirms he did receive the letter the applicant replied that he did not know what the person who wrote his affirmation had said in it. At that point, the applicant informed the court that he was not feeling well and wished the hearing to come to an end.

18. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

19. In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 8^th day of May 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

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 8/5/2018 Kamran 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 8/5/2018 Torture Claims Appeal Board / Non-Refoulement Claims Petition OfficePutative Respondent’s ref. no.: USM 3778/16/5/196/P983 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1909/15 & RBCZ 9000955/17 (formerly RBCZ 741/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

KAMRAN v. DIRECTOR OF IMMIGRATION

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	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicant in open court;