Case Detail

HCAL 932/2017

[2019] HKCFI 2388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 932 OF 2017

________________________

BETWEEN

	IFTIKHAR ALI	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: 25 September 2019

Date of Decision: 25 September 2019

________________________

D E C I S I O N

________________________

Introduction

1. This is an application dated 23 August 2019 to appeal my decision of 29 November 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. The applicant attended 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 11 March 2014. He was arrested on 5 April 2014. He submitted a non-refoulement claim form on 17 September 2015 and was interviewed by the Director of Immigration (“the Director”) on 23 December 2015. The Director dismissed his claim under all heads, by Notice of Decision on 4 January 2016 and by Notice of Further Decision on 8 December 2016. He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr S J Geiser (“the Adjudicator”), heard him on 10 April 2017. The Adjudicator refused his appeal on 3 November 2017.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 November 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 29 November 2018. He had 14 days from that date to appeal that decision which would have expired on 13 December 2018. By way of summons dated 23 August 2019, 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 15. 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.

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 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. The Form CALL-1 and Order were sent to the address on the Form 86 which is the same address as the one he presented to the court today, however, the applicant then admitted that it was not the address he resided at. He had moved in with his girlfriend some time ago and had not informed the court of his change of address. He has now married his girlfriend and does not reside at the address given. 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[1]. The consequences of any delay arising from failing to do so will fall upon the litigant[2].

6. The court does not accept that the explanation given for the delay is reasonable but has nevertheless gone on to examine whether there is any merit in the applicant’s appeal[3]. Whether there is any such merit will depend upon well‑established legal principles[4] 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 in his professionally prepared affirmation in support that he has a good ground of appeal but does not indicate what it is. That is because he clearly does not have one. From beginning to end the applicant has been playing the system and waiting until the last moment in order to take any step. He admitted that he had not sought to appeal until told the Immigration Department were going to have him removed.

Conclusion

7. The applicant has now been in Hong Kong since 2014. 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. He has not been full and frank with the court.

8. 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. The applicant merely wishes the Court of Appeal to consider his situation afresh and to be given time to obtain unidentified documentation. Having considered the length of delay, the lack of sound reason for the delay and the lack of underlying merit 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 23 August 2019 be dismissed.

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

The applicant appeared in person.

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

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

[3] Re Mehmood Ikhlas CAMP 28/2019, [2019] HKCA 567; Re MK HCMP 2609/2016; Re Gurung Min Bahadur CAMP 9/2018, [2018] HKCA 226

[4] Nupur Mst v Director of Immigration CAMP 54/2018, [2018] HKCA 524; Re Md Shohel Sheak CACV 233/2018, [2018] HKCA 714

HCAL 932/2017

[2018] HKCFI 2153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 932 of 2017

BETWEEN

	Iftikhar Ali	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 11 March 2014 and was arrested by the police on 5 April 2014. He was transferred to the Immigration Department on 7 April. He submitted a non-refoulement (“NRF”) claim by way of written representation on 8 April and was released upon recognisance on 30 May 2014. His NRF claim form was submitted on 17 September 2015.

2. The Applicant attended a screening interview on 23 December 2015. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 4 January 2016 and by Notice of Further Decision (re BOR 2) on 8 December 2016. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 1 November 2016. The adjudicator of the TCAB, Mr SJ Geizer (“the Adjudicator”), heard his appeal on 10 April 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 3 November 2017.

3. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 November 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 Malakwal in the Punjab. He is a Muslim, Mughal and single. He completed eight years of formal education and thereafter worked as a carpenter.

5. The Applicant is a member of the Muttahida Qaumi Movement (‘MQM’). His claim arises out of friction between MQM and the Pakistan Muslim League (Nawaz) (“PML(N)”). In February 2013, he received a verbal threat seeking to have him join the PML(N), which he refused. In March, he was assaulted by four to five members of PML(N) with sticks and was rendered unconscious. He awoke in hospital with injuries to his head and legs. He had a fractured knee cap. The matter was reported to the police although nothing came of it. At the end of the same year, and some time after the general election, the Applicant was in the MQM offices with several MQM members, when 10 to 15 supporters of PML(N) vandalised the offices. The MQM members were able to escape unharmed. On this occasion the Applicant did not go to the police as he believed that the police supported the ruling PML(N) party.

6. After the MQM office was vandalised, the Applicant moved to Rawalpindi and remained there for three to four months but was led to believe that he was being hunted by PML(N) in his home area. In February 2014, the Applicant received a phone call in which he was led to believe by an unknown caller that PML(N) had found his new location and were coming after him. He therefore instructed his family to sell his shop and decided to come to Hong Kong via China.

The non-refoulement claim

7. 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 (“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 the death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

8. 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

9. The Director analysed the Applicant’s claim on all applicable grounds. He considered a wide range of documentary evidence including documentation as to the general situation in Pakistan at the time of the screening, which has, in the interim, changed significantly and PML(N) are no longer in power. He correctly set out the law, key legal principles and made reference to relevant materials including Country of Origin information (“COI”). The Applicant was given every opportunity to state his case and to supplement the evidence before the Director, but he did not do so. In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner. In so far as the Further Decision is concerned, the Applicant was notified of his right to be considered under BOR 2 by letter dated 21 November 2016 and was invited to make submissions thereon. He declined to do so. If he had felt that the information available to the Director was out-of-date or inaccurate he had an opportunity to address this.

Decision of the Adjudicator

10. The Adjudicator 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. He established that the very first incident had arisen after the PML(N) members had asked him nicely to join them and then only later had said “…if you do not cooperate, you and your family, will be in danger”. He provided documentary medical evidence in respect of the March attack but not as to the participants in the incident; and suggested for the first time that he had also been attacked in Rawalpindi when a car tried to run over him. He had not mentioned this previously as he felt it might not have been connected.

11. The Adjudicator found the Applicant to be unconvincing and lacking in credibility. As a consequence, he had failed to establish his claim to even the low level required. Even if the claim had been made out, it was not sufficiently serious that the Applicant could not have relocated safely. Although the Adjudicator may have made limited reference to the COI available to him that does not mean that he was not cognisant of it. It is after all, for the Applicant to establish his claim and not for the Direct or Adjudicator to seek to disprove it.

Leave to apply for judicial review

12. 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

13. There were no formal grounds of review. In his affirmation in support, he states that neither the Director nor the Adjudicator considered the “ground realities” in Pakistan. He has not identified any particular procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and 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

14. Despite the fact that the Applicant did not submit any proper grounds of review, I have considered the papers and single ground of review carefully. There is no basis whatsoever for suggesting that the Director or Adjudicator failed to properly take into account the situation in Pakistan pertaining at the time of the screening and hearing. 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. The documentary basis for their decisions was appended to their decisions and, if incorrect or out of date, the Applicant could have identified where that was the case. The onus was on the Applicant. Despite that onus, the Director and the 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.

15. 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 29^th day of November 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

Notes for 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 29/11/2018
Iftikhar Ali

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 29/11/2018

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2926/16/1/49/P790

Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9000877/16 (formerly RBCZ 1692/14)

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

Form CALL-1

IFTIKHAR ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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