Case Detail

HCAL 660/2017

[2019] HKCFI 716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 660 OF 2017

___________________

BETWEEN
	AQEEL MUHAMMAD	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:	14 March 2019
Date of Decision:	14 March 2019

___________________

D E C I S I O N

___________________

Introduction

1. This is an application dated 19 November 2018 for appeal from my decision of 15 June 2018 refusing leave to apply for judicial review. The applicant had 14 days in which to apply to appeal that decision. He did not do so. He now requires leave to extend time to appeal against that order.

Procedural background

2. 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 5 March 2009. He submitted a non-refoulement claim on 31 July 2014 and was interviewed by the Director of Immigration (“the Director”) on 7 October 2014. The Director dismissed his claim under all heads, by Notices of Decision on 13 January 2015 and 2 February 2017. He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Peter Nguyen, heard him on 15 September 2015. The adjudicator refused his appeal on 12 October 2016 and 1 September 2017 in respect of BOR 2.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 September 2017, in which he gave his address as Room D, 4/F, 119 Kweilin Street, Sham Shui Po. He 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 15 June 2018 and sent to the address given by him to the court. He had 14 days from that date to appeal the decision, which would have expired on 29 June 2018. By way of summons dated 19 November 2018, he now seeks leave to appeal out of time.

4. 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.

5. 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. Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his delay.

6. The applicant appeared in person. In his affirmation dated 19 November 2018, the applicant provides no explanation for the delay. However, in his summons filed on the same date he states that he did not receive the letter and was only made aware of the Order when he attended the Immigration Department. The court notes that the address on the summons is Room D, 6/F, 1G Wing Lung Street, Cheung Sha Wan, which he says is his current address. The applicant had not informed the court of this change of address. Before me, the applicant submitted that he had moved just a few days after submitting his Form 86 and had thereafter moved several more times and cannot now remember where he was when the order was made. He has no excuse for his failure to inform the court of his current address and accepts that he is responsible for not having received the Call-1. In addition, he said that he reported to the Immigration Department weekly but that he had not been informed by them of the refusal of his application for judicial review until November 2018. I do not accept that.

Conclusion

7. The applicant has now been in Hong Kong since 2009. He has been interacting with various government agencies for the entirety of that period and accepts he received all necessary documents and notifications. He fully understood that the court required an up to date address in order to correspond with him. The reason this application is late is to be put entirely at his own door. In any event he claims he reported on a weekly basis and there is no reason why it should have taken five months to seek to appeal the decision of this court.

8. In any event, I have considered his underlying application. It has no merit as explained in the initial refusal of leave. There were no grounds of review and there is no actual complaint before the court as to the decision to refuse leave. Indeed, he specifically said that he had no complaint against the TCAB. He has not advanced any grounds of appeal and has no complaint about the decision of this court. Having considered the length of delay, reason for the delay and underlying merits of his application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

9. The applicant’s summons dated 19 November 2018 be dismissed.

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

The applicant appeared in person.

HCAL660/2017

[2018] HKCFI 1070

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 660 of 2017

BETWEEN

	Aqeel Muhammad	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 from China on 5 March 2009. He was arrested for illegally remaining on 6 March, and submitted a non-refoulement (“NRF”) claim by way of written representation on 10 March 2009. He was released on recognisance on 17 March 2009. His NRF claim form was submitted on 31 July 2014.

2. The Applicant attended a screening interview on 7 October 2014. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 13 January 2015 and by Notice of Further Decision (re BOR 2) on 2 February 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 26 January 2015. The Adjudicator of the TCAB, Mr Peter Nguyen, heard him on 15 September 2015. The Adjudicator refused his appeal on 12 October 2016, and in respect of BOR 2 on 1 September 2017.

3. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 September 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 in Nai Abadi, Pakistan. He obtained a Diploma in Commerce in 2008. It was whilst at College that his difficulties arose. The Applicant alleges that whilst at College, he was the recipient of insults, physical attacks and death threats from a group of students known as the Jutt Group. According to the Applicant, this student group was connected to the Pakistan Muslim League. The Applicant belonged to a rival student group known as the Friends Group. In his second year at college, the Applicant and three of his friends were assaulted by members of the Jutt Group during which the Applicant received bruises and abrasions and from which the Applicant maintains it took 20-25 days to recover. The matter was reported to the Principal of the College but not to the police. In retaliation, shortly after this assault, the Applicant and his friends assaulted the perpetrators themselves causing some injury to their victims. As a result, the Applicant and his friends were investigated by the police and went into hiding until a reconciliation was arranged. No prosecution ensued but the threats and insults continued, leading to a fight between the two groups at the end of the College year, which lasted approximately 15 minutes and resulted in the Applicant receiving bruises and swelling. As the threats continued the Applicant arranged to leave Pakistan, which he did unhindered.

The non-refoulement claim

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

i.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”);
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”);
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”); and
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”).

6. 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

7. The Director analysed the Applicant’s claim on all applicable grounds and gave the Applicant an opportunity to address him upon his BOR 2 claim at the initial interview but he did not wish to add anything further in respect of the factual basis of his claim. The Director correctly set out the law, key legal principles and made reference to relevant materials. The Applicant was given every opportunity to state his case and to supplement the evidence before the Director, which he chose not to do. In coming to his Decision to reject his claim under the various heads, the Director acted reasonably and explained his decision on the merits in a clear and intelligible manner. The Applicant was given notice on 12 January 2017, of the need to review a claim under BOR 2 but did not submit any further documentation and, as a result, his case was considered on the papers before the Director at that time. In so doing, the Director acted reasonably and in a fair manner in accordance with the relevant procedure and the applicant was not prejudiced as a result.

Decision of the Adjudicator

8. The Adjudicator analysed the Applicant’s claim on all applicable grounds on two separate occasions. He arranged for an oral hearing and treated the appeal as a rehearing. He correctly set out the law and key legal principles including the burden and standard of proof. After consideration of all relevant documentation in a proper and fair manner, the Adjudicator reasonably found that the Applicant had not established that his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion should he be returned to Pakistan, which is a Risk State.

Leave to apply for judicial review

9. 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 Decisions of the Director of Immigration and the Adjudicator. 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

10. There were no grounds of review. The Applicant maintains that he is dissatisfied with the decision of the Adjudicator and asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. I have considered the papers, grounds and submissions carefully. I have not found any error of law or procedure. 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 Director and 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. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

12. 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 15^th day of June 2018.

(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 15/6/2018

Aqeel 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 15/6/2018

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 809/15/1/160/P241

Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9001455/16 (formerly
RBCZ 601/09)

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

Form CALL-1

AQEEL MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Related cases with same parties

Files (2)

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