Case Detail

HCAL 101/2018

[2019] HKCFI 735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 101 OF 2018

___________________

BETWEEN
	AFGHAN ABDUL QADAR	Applicant
and
	TORTURE CLAIMS APPEAL BOARD /	Putative Respondent
	NON-REFOULEMENT CLAIMS
	PETITION OFFICE
and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

___________________

Before:

Hon Campbell Moffat J in Chambers

Date of Hearing:	15 March 2019
Date of Decision:	15 March 2019

___________________

D E C I S I O N

___________________

Introduction

1. This is an application dated 15 October 2018 for appeal from my decision of 28 September 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 12 May 2015. He submitted a Non‑refoulement Claim Form on 16 March 2016 and was interviewed by the Director of Immigration (“the Director”) on 7 April 2016. The Director dismissed his claim under all heads, by Notices of Decision on 17 May 2016 and 10 February 2017. He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms C K S Lam (“the Adjudicator”), heard him on 1 March 2017. The Adjudicator refused his appeal on 29 December 2017.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 January 2018, in which he gave his address as G/F, 161 Kat Hing Wai, Kam Tin, Yuen Long. 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 28 September 2018 and sent to the address given by him to the court. Subsequent to that date, the applicant filed a Notice of Change of Address with the court on 12 October 2018. His new address was Room 3, Flat 1, 3/F, Po Ting Building, 13‑25 Pau Cheung Square, Yuen Long. He had 14 days from 28 September 2018 to appeal the decision, which would have expired on 12 October 2018. That was the date he notified the court of his change of address. By way of summons dated 15 October 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 15 October 2018, the applicant submitted that he was late in filing his appeal because he had not received the original letter from the court. He was informed of the decision by the Immigration Department when he next attended upon his recognisance. Before this court he maintained that he had checked his previous address and the letter had never been received. He could not remember when he had attended at Immigration but he had come to court two days later in order to lodge an appeal.

Conclusion

7. The applicant has now been in Hong Kong since 2015. 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, that can be evidenced by the fact that he filed a Notice of Change of Address on 12 October 2018, at a time, he says, he had not received the Form Call‑1 or Order. 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.

8. In any event, the delay was a short one and I have considered his underlying application in some detail to establish whether there is a good reason to extend time. The claim before the Adjudicator has no merit as can be seen in the initial refusal of leave and in the underlying papers. There were no grounds of review advanced to support the Form 86 and none could be found by this court. The applicant was unable to identify any before the court today. There is also no complaint before the court as to the decision to refuse leave. He has not advanced any grounds of appeal. 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 15 October 2018 be dismissed.

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

The applicant appeared in person.

HCAL 101/2018

[2018] HKCFI 1921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 101 of 2018

BETWEEN

	Afghan Abdul Qadar	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 on 12 May 2015, from Nepal via Dubai, Malaysia and China, and was arrested by the police on 15 January 2016. He was transferred to the Immigration Department on the next day. The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 18 January 2016. He was released upon recognisance on 17 February 2016. His NRF claim form was submitted on 16 March 2016.

2. The Applicant attended a screening interview on 7 April 2016. The Director of Immigration (“the Director”) dismissed his claim (not including BOR 2) by Notice of Decision (“the Decision”) on 17 May 2016 and by Notice of Further Decision (re BOR 2) on 10 February 2017. The Adjudicator of the TCAB, Ms CKS Lam (“the Adjudicator”), heard him on 1 March 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 29 December 2017.

3. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 January 2018 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

4. The Applicant is an Afghani national. He was born in Zurmat on 5 July 1995. He received five years of formal education and then worked as a shepherd between 2011 and 2014. He has no political affiliation and has had no connection with the government or the military. In late 2014, the Applicant witnessed a skirmish between the Taliban and government forces. A few days later he was questioned by members of the Taliban who thought him to be a government spy. During this interrogation, he was punched and slapped and warned not to return to the area in question. He was also asked to join the Taliban but refused and was then punched and slapped again. He did not require medical attention for his injuries as he received only bruising. Two days later, a larger group of Taliban visited the Applicant to recruit him and when he refused, they assaulted him and took him to a mountain retreat, where they tied him up and left him for five days. Whilst he was served two meals a day, he was also assaulted each time he was given a meal and urged to join the Taliban. Even in the face of threats to kill him, the Applicant refused. On the fifth day, the Applicant broke free and escaped. He eventually made his way to Jalalabad, where he remained for a few months without work. The Applicant did not seek help from the authorities because he maintained that the Taliban would assault his mother and burn down her home if he did. Thereafter, the Applicant applied for and obtained a passport in order to make his way to China, whereupon he entered Hong Kong illegally.

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 (“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.

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 every opportunity to state his case and to supplement the evidence before the Director. 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 sent a letter dated 25 January 2017, in which he was informed of the Director’s intention to consider his claim under BOR 2 and he was offered the opportunity to make further representations but he did not do so.

Decision of the Adjudicator

8. The Adjudicator analysed the Applicant’s claim on all applicable grounds. She arranged for an oral hearing and treated the appeal as a rehearing. She correctly set out the law and key legal principles including the burden and standard of proof. The Adjudicator found a substantial number of inconsistencies within the evidence of the Applicant and gave numerous examples of the unsatisfactory nature of his account including the fact that it appeared to be somewhat embellished when compared to his original claim. He was disbelieved. Accordingly, he had not met the requisite burden placed upon him to establish his claim.

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 specific 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

11. I have considered the papers 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 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.

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 28^th day of September 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 28/9/2018

Afghan Abdul Qadar

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 28/9/2018

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3772/16/5/190/AFG10

Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9000166/17 (formerly RBCZ 10329/16)

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

Form CALL-1

AFGHAN ABDUL QADAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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