Case Detail

HCAL 930/2017

[2020] HKCFI 2625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 930 OF 2017

___________________

BETWEEN
	JAMI MAHMOOD	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:	8 October 2020
Date of Decision:	8 October 2020

___________________

D E C I S I O N

___________________

Introduction

1. This is an application dated 26 August 2020 to appeal my decision of 7 August 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 did not attend court for the hearing and therefore I have considered the application upon the papers.

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 23 June 2006. He was arrested by the police on the same day. He had a chequered history with the authorities subsequent to that but eventually submitted a supplementary claim form on 26 January 2015 and was interviewed by the Director of Immigration (the “Director”) on 14 December 2015, although this was the last of 11 interviews. The Director dismissed his claim under all heads, by Notice of Decision on 21 December 2015 and by Notice of Further Decision on 5 April 2017. He appealed those Decisions to the Torture Claims Appeal Board (the “TCAB”). The adjudicator of the TCAB, Mr Tam Kwok‑wah (the “Adjudicator”), heard him on 1 June 2017. The Adjudicator refused his appeal on 21 June 2017.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 November 2017 and was out of time. 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 7 August 2020 due to administrative delays within the High Court, of which he had the benefit. He had 14 days from that date to appeal that decision which would have expired on 21 August 2020. By way of summons dated 26 August 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 was late and gave no reason within his Affirmation as to why that was the case. As with his original application for judicial review, the applicant provided no grounds of appeal. 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. There was no explanation given for the delay and time limits are rightly strict. The Court is nevertheless 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 question for the Court is whether any 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]. There were no submissions.

Conclusion

8. The applicant has now been in Hong Kong since 2006. He has been interacting with various government agencies since that date and has had the benefit of a significant delay in dealing with the application. He has no grounds of appeal.

9. 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 none could be ascertained from the papers. There was no complaint before the Court as to the decision to refuse leave. 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.

10. The applicant’s summons dated 26 August 2020 be dismissed.

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

The applicant, acting in person, is absent.

[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 930/2017

[2020] HKCFI 1926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 930 OF 2017

BETWEEN

	Jami Mahmood	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 on 20 June 2006 and was arrested by the police on the same day. The applicant originally made a torture claim under Part VIIC of the Immigration Ordinance, Cap 115 on 23 June 2006 and was released upon recognisance on 2 November 2006. On 24 October 2008, the applicant was convicted of possession of a dangerous drug and fined $1,000. He was arrested once more on 19 September 2010, this time for theft but released without charge and then on 23 October 2010, he was arrested for fighting in a public place and bound over to keep the peace. The applicant’s torture claim was rejected on 5 October 2012. His appeal against that decision was refused on 4 December 2012.

2. Thereafter, the applicant submitted a non-refoulement claim by way of written representation on 22 February 2013, which did not include a further consideration of his torture claim. His supplementary claim form was submitted on 26 January 2015.

3. The applicant attended 10 screening interviews in respect of his original claim and a further interview in respect of his claim under the Unified Screening Mechanism on 14 December 2015. The Director of Immigration (“the Director”) dismissed his claim on all grounds (not including that under BOR 2 and torture) by Notice of Decision (“the Decision”) on 21 December 2015 and by Notice of Further Decision (re BOR 2) on 5 April 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Tam Kwok‑wah, Jerry (“the Adjudicator”), heard his appeal on 1 June 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 21 June 2017.

4. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 November 2017 and is out of time. He did not request an oral hearing. The matter was therefore considered on the papers.

Background

5. The applicant is a Pakistani national. He was born on 20 May 1983, in Pakistan and had very limited schooling and a troubled upbringing. In 2002, at the age of 19, the applicant’s father was shot dead. The applicant joined Sepa-e-Sahaba (“SES”), a secret organisation, which was his father’s political party, in order to seek revenge against the Shiya Party (“Shiya”), whom he believed had killed him. According to the applicant, once it became known that he had joined SES, members of Shiya made false accusations against him to the police, which resulted in his arrest and torture. He was released after three weeks and treated for his injuries at home. In retaliation, once he had recovered from his injuries, the applicant attacked a member of Shiya and broke his hands and legs. After that, the applicant fled to Lahore and paid 20,000 Rupees for a China visa, leaving for China on 18 June 2006.

6. Since coming to Hong Kong he has married an Indonesian female who is also an asylum seeker and they have three children of the marriage.

Form 86 out of time

7. In accordance with Order 53, rule 3, the applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review. This was dated 22 November 2017. Under Order 53, rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose. Where the relief sought is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision. In this case time ran from 21 June 2017 and expired on 21 September 2017.

8. It is incumbent upon the applicant to provide good reason for extending time. The applicant has submitted no explanation for his delay and has not sought leave for an extension of time. I have nevertheless considered the principles^{^[1]} applicable to granting such an extension if an application had been made and those are:

1)     the length of delay;
2)     the reasons for delay;
3)     the prospects of success in the intended appeal; and
4)     the prejudice to the putative respondent and administration of justice if extension of time were granted.

9. In this case, the applicant was late by two months and one day and has not offered any explanation for this delay. In view of the absence of good reason (or indeed any reason) for the delay in filing his Form 86, he must satisfy the court that there is a reasonable prospect of success in his intended leave application and that there will be no prejudice to the putative respondent or administration of justice if an extension of time were to be granted. As to the latter, there is no suggestion there would be any such prejudice, save that it is in the interest of justice for matters subject to judicial review to be dealt with expeditiously. This application therefore turns upon the likelihood of success of his application for judicial review.

10. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. 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. It can therefore only be an application to apply for leave to judicially review the Decision of the Adjudicator. The applicant must therefore show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain an extension of time to seek leave to judicially review that Decision.

11. All of the papers considered by the Director, were before the Adjudicator. There were a considerable number of them. He arranged for an oral hearing at which the applicant was legally represented and had an interpreter. The applicant relied upon the papers before the TCAB and gave evidence. He outlined the abuse he received within the police station but did not describe the actual injuries received. Despite his father having been a life-long member of SES and the applicant becoming a member of SES, his knowledge of the organisation was scant. He was not considered a credible witness. In any event, the Adjudicator considered the relevant COI and the facts of the claim but the applicant had not satisfied the burden of proof placed upon him for the reasons given which were reasonable and arrived at after a fair hearing.

Conclusion

12. In the absence of any reason for the delay and any grounds of review, the court is left with the bare facts as relied upon by the applicant and the application of the law to those facts by the Adjudicator along with the explanation given by him within the Decision. Having analysed that Decision, the applicant’s claim is not credible and was rejected on that basis after due process. 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 an extension of time to apply for leave to judicially review that Decision.

13. This application is refused.

Dated the 7^th day of August 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 7 August 2020 Jami Mahmood 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 7 August 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2885/16/1/8/P782 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: RBCZ/9000746/17 (formerly RBCZ/2000130/14)

Form CALL-1

[1]Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393; H v Director of Immigration[2020] HKCFA 22

JAMI MAHMOOD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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