Case Detail

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

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[2019] HKCFI 1990-EN-2019-08-30

ARSHAD MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

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HCAL 1661/2018

[2019] HKCFI 1990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1661 OF 2018

___________________

BETWEEN
	Arshad Muhammad	Applicant
and
	Torture Claims Appeal Board/Non-refoulement Claims Petition Office	Putative Respondent
	Director of Immigration	Putative Interested Party

___________________

Before:

Deputy High Court Judge Woodcock in Chambers

Date of Hearing:	2 August 2019
Date of Decision:	30 August 2019

___________________

D E C I S I O N

___________________

1. This is an application for an extension of time to appeal against my decision of 17 June 2019 refusing this applicant leave to apply for judicial review. The applicant may appeal as of right but has to observe the time limits to appeal an interlocutory order. Pursuant to Order 53 rule 3(4), the applicant had 14 days in which to apply to the Court of Appeal to appeal that decision. He failed to do so. He now requires and seeks leave to extend time to appeal against that order. This application is dated 5 July 2019 and there is an affirmation.

2. The applicant had filed a Form 86, a notice of application for leave to apply for judicial review on 20 August 2018. The intended judicial review was against the decision of the Torture Claims Appeal Board (“TCAB”) dated 14 August 2018 rejecting the applicant’s BOR 2 claim only. The applicant’s non‑refoulement protection claim had been dismissed by the TCAB earlier on 24 March 2017 but did not include a consideration of his BOR 2 claim. This was later dismissed by the adjudicator on 14 August 2018 without an additional hearing. The adjudicator found there to be no need for further questions after an earlier oral hearing. The applicant had not submitted any additional facts. The adjudicator took into account what grounds were submitted by the applicant in his notice of appeal/petition.

3. The adjudicator found that the nature and scope of the non‑refoulement protection afforded by BOR 2 had no relevance to the non‑refoulement claim as presented by the applicant. He found the applicant could not succeed in establishing a case under BOR 2 and confirmed the decision of the Director. Upon a reading of the papers it is clear it was never the applicant’s case that he would be arbitrarily deprived of life in Pakistan, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2.

4. I have set out the background to his claim in the Form CALL‑1. In fact, the applicant did not request an oral hearing when he filed a Notice of Application for leave to apply for judicial review. I considered his application on the papers. He had filed an affirmation but it contained no grounds. In view of the lack of grounds, a letter was sent to the applicant dated 15 January 2019 to which he replied that he had no further submissions to make to support this application.

5. My order was dated 17 June 2019 and the applicant gives no explanation in his affirmation for why he did not file a Notice of Appeal on time. I note he was only five days late but he did confirm during the oral hearing of 2 August 2019 that he did receive my Form CALL‑1 within the 14‑day period. He said that he asked a friend for advice and was told to ask for a hearing as he had not had an oral hearing to consider his application for leave to apply for judicial review. As I have said above, there was no request for an oral hearing in that application. Essentially, his only reason for a failure to file a Notice of Appeal on time was ignorance of the law.

6. His explanation that he was unaware of his rights to apply to the Court of Appeal is no excuse, ignorance of the law is no excuse. There is no reasonable explanation for his delay in bringing the intended appeal.

7. In any event, there is no merit nor any real prospect of success in the intended appeal. I gave him an opportunity to say more during the oral hearing but he was unable to do so; he only submitted that he could not leave Hong Kong because his life was in danger in Pakistan.

8. Having considered the reason for his delay, his lack of merit in the application, I find it would not be in the interests of justice to grant an extension of time.

9. The applicant’s summons dated 5 July 2019 is dismissed.

	(Amanda Woodcock)
	Deputy High Court Judge

The applicant appeared in person.

HCAL 1661/2018

[2019] HKCFI 780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1661 of 2018

BETWEEN

	Arshad Muhammad	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Woodcock:

Leave to apply for judicial review be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1. The applicant is a Pakistani national who arrived in Hong Kong illegally and was arrested by the police on 13 November 2013. He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 13 January 2016 and by a notice of further decision on 25 April 2017. The applicant had appealed that first decision and it was dismissed by the Torture Claims Appeal Board (“TCAB”) on 24 March 2017. The applicant lodged another appeal after receiving the notice of further decision and this was dismissed by the TCAB adjudicator on 14 August 2018.

2. The chronology of the decisions and appeals are set out in detail in the adjudicator’s decision. The notice of further decision related to the applicable ground under Article 2 of the Hong Kong Bill of Rights (“BOR 2”). The Director had invited the applicant to submit additional facts but there was no response or submission of any additional material relating to a BOR 2 claim; the Director rejected that BOR 2 claim on 25 April 2017.

3. The adjudicator of the TCAB was well aware of the fact that his decision preceded this notice of further decision. He considered the applicant’s submissions in his notice of appeal/petition dated 8 May 2017. He determined that the appeal/petition could proceed without a hearing and rejected it on 14 August 2018. The applicant then filed a notice of application for leave to apply for judicial review on 17 August 2018. He has not requested an oral hearing. I have considered his application on the papers.

4. This application only concerns his BOR 2 risk claim determination. The adjudicator treated the appeal as a rehearing. However, an oral hearing is not an automatic right. The adjudicator found there to be no need for further questions. He found there to be no advantage in holding an oral hearing. He took into account what grounds were submitted by the applicant in his notice of appeal/petition. The adjudicator could see neither a need nor the justification to organise yet another oral hearing merely to recanvass exactly the same case as had already been dealt with and disposed of previously. Therefore, the adjudicator was of the view that the appeal could be dealt with by way of a paper review. The adjudicator set out Article 2 and found that the nature and scope of the non-refoulement protection afforded by BOR 2 had no relevance to the non-refoulement claim as presented by the applicant. He found the applicant could not succeed in establishing a case under BOR 2. The adjudicator confirmed the decision of the Director.

5. Upon a reading of the papers, it is clear it was never the applicant’s case that he would be arbitrarily deprived of life in Pakistan, have the death penalty imposed on him or otherwise be deprived of his right under BOR 2.

Leave to apply for judicial review

6. The applicant has filed an affirmation but it contains no grounds. He does not complain of procedural impropriety; he does not complain that the adjudicator was wrong not to conduct an oral hearing and that he was deprived of a chance to be heard. He only repeats that his life is still in danger in his home country. In view of the lack of grounds, a letter was sent to the applicant dated 25 January 2019 to which he replied that he had no further submissions to make to support his application.

7. I have examined the adjudicator’s decision as well as the decisions of the Director and find no error of law by the decision-maker. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. I see no impropriety or unfairness in the decision not to conduct another oral hearing to consider the additional ground of a BOR 2 claim. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

8. In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated the 17^th day of June 2019

(Ms Ava Tai)
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 granted, the Applicant or the Applicant’s 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 17/06/2019
Arshad 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 17/06/2019

Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
BOR 541/17/5/41/P159

The Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1955/15 (formerly RBCZ 937/14)

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

Form CALL-1

	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicant in open court;