Case Detail

HCAL 765/2017

[2020] HKCFI 2913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 765 OF 2017

___________________

BETWEEN

	EHSAAN 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: 13 November 2020

Date of Decision: 13 November 2020

___________________

D E C I S I O N

___________________

Introduction

1. This is an application dated 9 September 2020 to appeal my decision of 2 July 2020 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. The applicant attended the Court with the benefit of an interpreter.

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 8 January 2016. He was arrested on the same day. He submitted a non-refoulement claim on 23 March 2016 and did not attend a screening interview. The Director of Immigration (“the Director”) dismissed his claim under all heads, by Notice of Decision on 1 August 2016 and by Notice of Further Decision 22 May 2017. He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Adam Moore (“the Adjudicator”), heard him on 28 September 2017. The Adjudicator refused his appeal on 29 September 2017.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 13 October 2017 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 2 July 2020. He had 14 days from that date to appeal that decision which would have expired on 16 July 2020. By way of summons dated 9 September 2020, he 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 53, rule 3(4) of the Rules of the High Court 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 2B(6). The Court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted[1].

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.

6. 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 as this forms part of the consideration of whether there is good reason to allow an extension of time. The applicant accepted he was late and gave no reason within his professionally prepared Affirmation as to why that was the case. The Court file suggests that it was sought to be served upon the address given at that time, which is not the same address the applicant uses today. However, the file also suggests that correspondence subsequently sent to the address given at the time of this summons was also returned. The applicant maintains that he only learnt of the refusal of leave when an officer from the Immigration Department contacted him to deal with his return to his home country. It is the duty of a litigant to give the Court an address to which correspondence or notice can come to his attention in a timely manner[2]. The consequences of any delay arising from failing to do so will fall upon the litigant.[3]

7. Even if the Court does accept that the explanation given for the delay is a reasonable one, the Court is required to examine whether there is any merit in the applicant’s appeal[4]. Whether there is any such merit will depend upon well-established legal principles[5] including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim. The applicant submits simply that he has a good ground of appeal not previously considered but advances no such ground before the Court today. He does not dispute the decision of this Court. The question for the Court is whether these submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6].

8. As the role of the Court in judicial review is not to provide a further avenue of appeal from the Decisions of the Director and the Adjudicator, it follows that an appeal from this Court should not be founded upon any attempt to appeal those same decisions. It is an appeal from the decision of this Court and the applicant should look to draft grounds of appeal on that basis. This was explained in some detail to the applicant when he appeared.

Conclusion

9. The applicant has now been in Hong Kong since 2016. He has been interacting with various government agencies since that date. The explanation he has offered to this Court, as to why he did not receive the order is not acceptable. Nor is it acceptable that his subsequent correspondence address has proved unreliable. The suggestion that he now has a good ground of appeal was wholly without foundation.

10. 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 as such. He simply stated that the decisions were unfair and unreasonable without more. None could be ascertained from the papers. There was no complaint before the Court as to the decision to refuse leave. The applicant merely wishes the Court of Appeal to consider his situation afresh. 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.

11. The applicant’s summons dated 9 September 2020 be dismissed.

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

The applicant appeared in person.

[1] Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016)

[2] Re Ahmed Zakar CAMP 17/2019, [2019] HKCA 566

[3] Islam Raja Rais v Director of Immigration HCMP 881/2017

[4] Re Mehmood Ikhlas CAMP 28/2019, [2019] HKCA 567; Re MK HCMP 2609/2016; Re Gurung Min Bahadur[2018] HKCA 226

[5] Nupur Mst v Director of Immigration[2018] HKCA 524; Re Md Shohel Sheak[2018] HKCA 714

[6] Re Ansar Muhammad[2018] HKCA 227

HCAL 765/2017

[2020] HKCFI 1423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 765 OF 2017

BETWEEN

	Ehsaan 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 by boat from China on 8 January 2016 and was arrested by the police on the same day. He was transferred to the Immigration Department on 10 January 2016. The applicant submitted a non-refoulement claim by way of written representation on 11 January 2016. His non-refoulement claim form was submitted on 22 March 2016.

2. The applicant did not attend a screening interview. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 1 August 2016 and by Notice of Further Decision (re BOR 2) on 22 May 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Adam Moore (“the Adjudicator”), heard his appeal on 28 September 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 29 September 2017.

Background

4. The applicant is a Pakistani national. He was born on 6 March 1991 and lived in the Punjab. He is a member of the Pakistan Tehreek-e-Insaf political party. He worked as a farmer on family land. In 2013, the applicant came to understand from others that a person called Mustafa wanted to take over his land. At one stage, the water supply was cut off and he believed this was done by Mustafa. He made a complaint to the police about this and told them that Mustafa had threatened to kill him but the police said that this was a private matter. Three days later the applicant was threatened by an unknown man who approached him in the street on behalf of Mustafa and told him not to go to the police again. 10 days after that incident, Mustafa tried to run over the applicant but was unsuccessful. This incident was reported to the police but the applicant was disbelieved. In 2013 Mustafa was elected to the national assembly of Sargodha on behalf of the Pakistan Muslim League (N). In July 2013, four men came to the applicant’s home and asked the applicant’s father to transfer his land to Mustafa. He refused and they left. A month later, the applicant was visited by two plain clothes policemen who said that they should transfer the land to Mustafa. They too left without incident. In September 2013, the applicant was beaten by men with rods and sticks for a couple of minutes until they were stopped by passers-by. The men said they were from Mustafa. As a result of this incident, the applicant was bruised and required stitches to his hands. Thereafter, whenever the applicant met Mustafa’s men on the street, they would threaten him. This occurred several times a month. In mid‑2014, the applicant was attacked once more. He was punched and kicked before being rescued. The men who assaulted him threatened to break him into pieces. In late 2014, he says that he was stopped by two men armed with pistols. He recognised one of them as someone who had previously assaulted him. He was told that if he wanted to stay alive, then he needed to transfer the land. They fired shots in the air but then left. A similar incident occurred in May 2015 when three men armed with rifles and pistols threatened to kill him if he did not transfer the land. They beat him up. They also fired shots into the air and then left. None of these attacks were reported to the police. Eventually the applicant went into hiding and then fled to China.

The non-refoulement claim

5. Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be 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 (“the 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. As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the board has been pursued by the claimant and dealt with.

Decision of the Adjudicator

8. The Adjudicator dealt with 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. He asked questions which the applicant initially answered but then said he was not mentally well and his memory was poor at the stage that the Adjudicator enquired into his case in more detail. He therefore asked the Adjudicator to consider his case upon the papers. The Adjudicator cautioned him specifically that if he took this course of action, the decision may be unfavourable to him. He took the view that the applicant was unwilling rather than unable to answer his questions. After careful consideration, the Adjudicator noticed that his father had been unharmed despite being the one who actually owned the land. Even taken at its highest, the applicant had received only minor injuries over a significant period of time in which he could have been seriously harmed or killed if the protagonists had actually intended to do so. The Adjudicator found that the applicant had not satisfied the burden of proof placed upon him and dismissed his appeal.

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 decision of 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 proper grounds of review. The applicant complained that the decisions were unfair and unreasonable without more. He has not complained of any specific procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the applicant did not submit any proper grounds of review, I have considered the papers carefully. I have not found any error of law or procedure by the Adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Indeed, quite the opposite as the Adjudicator warned the applicant that he was at risk when the applicant refused to answer his questions. Despite the onus being upon the applicant, the Adjudicator attempted to engage in a joint endeavour with the applicant, which the applicant declined. He considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case on the papers appropriately. There is no criticism of his determination, which was open to him 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 the 2^nd day of July 2020.

	(Marcus Wong)
	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 refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must:
a) file any notice of appeal within 14 days from the date of judgment or order; and b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the Registrar: (i) a copy of the sealed judgment or order and copy of the reasoned decision; and (ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and e) comply with Order 59 of the Rules of the High Court to properly progress the appeal.		Sent to the Applicant on 2 July 2020 Ehsaan 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 2 July 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4363/16/8/82/P1079 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: RBCZ 9001723/17 (formerly RBCZ 10188/16) [T7S38]

Form CALL-1

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

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