FIASAT v. WESLEY WONG, ESQ [Decision on Leave Application]

HCAL 1370/2018

[2020] HKCFI 2480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1370 OF 2018 

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D E C I S I O N

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1.  On 17 July 2019 Deputy High Court Judge K W Lung refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“the Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant by a summons issued on 8 August 2019 seeks extension of time to appeal against that decision, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 31 July 2019, and hence he was late by 8 days with his intended appeal.

3.  However, the Applicant failed to appear at the scheduled hearing of his summons on 9 October 2019, and DHCJ K W Lung therefore dismissed his summons for want of prosecution.

4.  On 28 October 2019 the Applicant issued another summons again for leave to appeal against DHCJ K W Lung’s earlier decision, explaining in his supporting affirmation that he did not receive the notice of hearing of his first summons and hence he was not aware of the scheduled hearing for his application.

5.  Upon ascertaining that the Applicant might indeed not have received the notice of hearing after confirmation from the Immigration Department that he did change his address around the same period, DHCJ K W Lung directed on 1 November 2019 that the Applicant’s second summons be treated as an application to set aside the order of 9 October 2019 and for extension of time to appeal, and that it be fixed for hearing.

6.  However, due to impact of the subsequent Covid-19 pandemic, the Applicant’s summons was not fixed for hearing until now before me, and at the hearing the Applicant confirmed that he did change his address late last year and had accordingly informed the Immigration Department, and hence he never received the notice of hearing of his first summons sent to his former address which explains why he did not attend its hearing on 9 October 2019. As such and as noted above the confirmation from the Immigration Department, I accept the Applicant’s explanation and set aside DHCJ K W Lung’s order of 9 October 2019.     

7.  In proceeding to deal with Applicant’s summons for leave to appeal against DHCJ K W Lung’s decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The AppealPanel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director ofImmigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur[2018] HKCA 226; and Re Saqlain Muhammad[2018] HKCA 346.

8.  In the Applicant’s case, a delay of 8 days for his intended appeal may not be considered as significant, for which he explained in his supporting affirmation that he received the decision late only on 4 August 2019 when by then he was already out of time. He however did not provide any documentary evidence such as the envelope which would show the date it was posted, and as the court record shows that the decision was sent on the same day of 17 July 2019 and has never been returned through undelivered post, I am not satisfied that the decision only reached the Applicant more than 2 weeks late as alleged, but as noted above, I accept that his delay of 8 days may not be considered as significant, and propose to focus on the prospect of his intended appeal. 

9.  However, the Applicant did not in his summons or supporting affirmation or at the hearing provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable, other than a mere regurgitation of his claim that both the Director and the Board reached the wrong decision. As such and in the absence of any error in DHCJ K W Lung’s decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal.     

10.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.

HCAL1370/2018

[2019] HKCFI 1777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1370 of 2018

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration as the interested party (“the Director”).

The applicant

2.  The applicant is a Pakistani national. He came to Hong Kong illegally on 28 July 2015. He surrendered to the Immigration Department on 5 August 2015. On 5 November 2015 he lodged his non-refoulement claim. He was convicted of an offence of taking employment without the authority of the Director and was sentenced to 15 months’ imprisonment.

3.  He claimed that if he was repatriated to Pakistan, he would be harmed or killed by the members of a Sunni organization and their associates being related to the terrorist group, the Taliban.

4.  In his statement given to the Director and the Board, he said that he was a Sunni Muslim. In May 2014, his brother and their neighbour Adil had joined an organization formed by some of the Sunni Muslims associated with the terrorist group, the Taliban. His father advised his brother to quit the organization. His brother took the advice and withdrew from the organization. Shortly afterwards, he was murdered by members of the organization. A few days later, Adil told the applicant that the organization members asked him to join the organization or he would be killed. He moved to other places. He considered that if he stayed in Pakistan, he would be killed too. Therefore, he arranged to come to Hong Kong through China.

The Director’s Decision

5.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.  By Notice of Decision dated 27 February 2017 (“the Director’s Decision”), the Director refused his application for the reason that his claim was not substantiated.

The Board’s Decision

7.  He appealed to the Board and he attended a hearing before the Adjudicator on 13 March 2018.

8.  By its Decision dated 18 May 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.  Having considered the applicant’s evidence, the Adjudicator concluded that there was no merit in his application. The Adjudicator set out his reasons under paragraph 22 of the Board’s Decision. In gist, the Adjudicator rejected all his claims, taking into consideration of the relevant factors as provided under section 37ZD of the Immigration Ordinance, Cap 115.

Application for leave to apply for judicial review

10.  By Form 86 dated 12 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision, joining the Director as the interested party.

11.  In his affirmation in support of his application dated 12 July 2018, the applicant relied upon the following grounds:

(1)   the hearing bundle was delivered to him shortly before the appeal hearing;

(2)   the contents of the hearing bundle were in English and there was no translation;

(3)   the Board relied upon the Country of Origin Information which was outdated and hearsay; and

(4)   the BOR 2 risk was assessed without screening by the immigration officer.

DISCUSSION

12.  The applicant had appeared before me and he confirmed that before the appeal hearing, his friend had explained the contents of the Hearing Bundle to him. He also confirmed that he had no complaint against the Board. He was satisfied that he had had a fair hearing before the Board.

13.  Grounds (1) and (2) do not sustain.

14.  As to the allegation that the Board had relied on the source of news which was not officially recognized or it is simply hearsay, under section 18 of Schedule 1A(1) of the Immigration Ordinance, the Board may consider the same evidence that was before the immigration officer^[1]. The Director is entitled to consider any relevant materials for the investigation under section 37ZB of the Immigration Ordinance (“the Ordinance”)^[2]. The Director had considered the relevant reports in relation to the Country of Origin Information. They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings. The Court of Final Appeal had also relied upon The Handbook (United Nations High Commission for Refugees) in its Judgment in Sakthevel PrabakarvSecretary for Security (2004) 7 HKCFAR 187^[3]. The applicant has not set out any reason why he considers that the information is unreliable. Ground 3 fails

15.  Ground (4) fails as the Director assessed this risk in the same screening when other risks were considered.

16.  I find that the applicant is unable to show that his judicial review has any reasonable chance of success.

CONCLUSION

17.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for judicial review. Accordingly, I dismiss his application.

Dated the 17^th day of July 2019

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

Form CALL-1