Case Detail

HCAL 709/2017

[2018] HKCFI 2780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 709 of 2017

________________________

BETWEEN
	Armed Farhan	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

_______________________

Before:

High Court Judge Campbell-Moffat in Chambers

Date of Hearing:	14 December 2018
Date of Ruling:	14 December 2018

________________

R U L I N G

________________

Introduction

1. This is an application dated 4 September 2018 for appeal from my decision of 5 July 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 legally on 13 February 2016. He submitted a non-refoulement (“NRF”) claim on 2 June 2017 and was interviewed by the Director of Immigration (“the Director”) on 19 June 2017. The Director dismissed his claim under all heads, by Notice of Decision on 22 June 2017. He appealed those Decisions to the Torture Claims Appeal Board (‘the TCAB’). The adjudicator of the TCAB, Mr Wesley Wong, heard him on 7 September 2017. The adjudicator refused his appeal on 15 September 2017.

3. The applicant filed a notice of application on a F86 seeking leave to apply for judicial review on 23 October 2017, in which he gave his address as CIC, 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 5 July 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 19 July 2018. By way of summons dated 4 September 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 O 59 r 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. In his Affidavit in support, he claims he was unaware of the time limit to do so.

6. The applicant appeared in person. He submitted that he was late in filing his appeal because he had not informed the court of his new address since being released from detention. He was informed by the Department of immigration when he signed on but he had then taken some time to find a lawyer and seek advice. He had a very relaxed approach to the time limits.

Conclusion

7. The applicant has now been in Hong Kong since 2016. 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. He was notified promptly of the decision of this court and, had he given his current address to the court, he would have been made aware of what was required of him should he wish to appeal that decision. In the event, he received a copy of the decision late but then still took some time to action it. It was incumbent upon him to do so promptly. He put himself in a position where that could not happen.

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 the complaint before the Court as to the decision to refuse leave is that it was unfair and unreasonable without more. 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 4 September 2018 be dismissed.

	(A P Campbell-Moffat)
	High Court Judge

The applicant appeared in person

HCAL709/2017

[2018] HKCFI 1077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 709 of 2017

BETWEEN

	Ahmed Farhan	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 legally on 13 February 2016 from China. He had travelled to and from Hong Kong on many previous occasions. He overstayed as of 28 February 2016, and surrendered to the Immigration Department on 29 February. He was released upon recognisance on 5 April 2016, and submitted a non-refoulement (“NRF”) claim by way of written representation on 26 June 2016. On 4 October 2016, he was arrested and prosecuted for possession of dangerous drugs and received six months’ imprisonment. Upon his release, he has been detained in Castle Peak Immigration Centre. His NRF claim form was submitted on 2 June 2017.

2. The Applicant attended a screening interview on 19 June 2017. The Director of Immigration (“the Director”) dismissed his claim on all grounds on 22 June 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The Adjudicator of the TCAB, Mr Wesley Wong, heard him on 7 September 2017. The Adjudicator considered his appeal on all applicable grounds. The Adjudicator refused his appeal on 15 September 2017.

3. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 October 2017 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

4. The Applicant is an Indian national. He was born on 22 November 1991, and is single. He lived in Kabitirtha, Kolkata and is a Muslim. He is a university graduate. From 2008, the Applicant worked in sales and from 2012, he became the owner of a mobile phone and accessories shop. In 2010, the Applicant met and fell in love with a Hindu lady “Kirti”, who comes from a wealthy family which belongs to a higher caste. Her father disapproved of the relationship. In 2015, the Applicant started to get telephone messages telling him to stay away from Kirti. In the same year, the Applicant believes that he was deliberately run over by a car in which her father was sitting. He only received bruises as a result and did not report the matter to the police. Later that year, his shop was looted by masked men carrying knives. They used their bare hands and their knives to beat him up and made references to Kirti and to the fact that he would not have a business in order to be able to marry her. This incident resulted in injury to his right arm and side which is now scarred. He did report this incident to the police but was warned off by them. Because of the continued pressure from Kirti’s father, the Applicant decided to come to Hong Kong to avoid further interference. In fact, the Applicant had been to Hong Kong already in 2015. He had travelled to Hong Kong in January, February, August, September and November of that year. He also came to Hong Kong in January 2016 before leaving for China.

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”). 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.

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. He considered a wide range of documentary evidence. He correctly set out the law, key legal principles and made reference to relevant materials. The Applicant was given the opportunity to state his case. In coming to his decision to reject the Applicant’s claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.

Decision of the Adjudicator

8. The Adjudicator also analysed the Applicant’s claim on all applicable grounds. 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. The Applicant had the opportunity to address the Tribunal and state his case, which was, in any event, not a strong one. The Adjudicator had concerns about the veracity of the Applicant, but nevertheless considered his case in a reasonable and unbiased manner.

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 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. This was a weak case. 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 5^th day of July 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 5/7/2018

Ahmed Farhan

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 5/7/2018

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7602/17/6/298/IN1440

Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1211/17 (formerly RBCZ/12377/16) (T1S37)

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

Form CALL-1

AHMED FARHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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