Case Detail

HCAL 1677/2018

[2019] HKCFI 2327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1677 OF 2018

___________________

BETWEEN
	Hassan Ali	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 Court

Date of Hearing:	30 August 2019
Date of Decision:	4 October 2019

________________________

D E C I S I O N

________________________

1. This is an application for an extension of time to appeal against my decision dated 24 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. The applicant had 14 days in which to apply to the Court of Appeal pursuant to Order 53 rule 3(4). He failed to do so. He now requires and seeks leave to extend time to appeal against that order. This application is dated 26 July 2019 and there was a delay of 18 days.

2. The applicant filed a Form 86, a notice of application for leave to apply for judicial review on 20 August 2018. He did not request an oral hearing and I considered his application on the papers. The intended judicial review was against the decision of the Torture Claims Appeal Board (“TCAB”) dated 6 August 2018. The TCAB adjudicator rejected the applicant’s non-refoulement protection claim; she found the applicant untruthful. She did not find him credible and did not believe he was a genuine claimant. In her decision, she set out his claim and evidence in full detail, including his answers to her questions. She gave very full reasons for her conclusions. She found significant inconsistencies and discrepancies in his claim and evidence therefore, she dismissed his appeal/petition.

3. The applicant’s affirmation to support his judicial review application contained no grounds. He only wrote that his life was still in danger at home. The applicant is a Pakistani national who entered Hong Kong illegally on 29 April 2016 and surrendered on 4 May 2016.

4. In the applicant’s affirmation to support this application he gave his reason for the delay as ignorance of the law and the legal procedure. He states that he had no friends to help him and that is why he is late. During the hearing, he submitted something quite different. He said he had not received my order and only knew that I had dismissed his application to apply for leave to apply for judicial review when he reported to the Immigration Department and they informed him. He then asked a friend to help him file this application for an extension of time to appeal.

5. I asked the applicant when he found that out from an immigration officer and he said the 4 or 5 July. This application came some 21 or 22 days later. He did not explain why there was this delay.

6. At the hearing for this application, the applicant confirmed that his address had not changed and that my order dated 24 June 2019 was posted to his home address. He claims he did not receive it. A notice of hearing for this application for extension of time was posted to the same address and he received that letter dated 19 August 2019.

7. The delay in filing his notice of appeal was just over two weeks and not a substantial delay. However, his explanation that he was unaware of the law and time limits in his affirmation has no merit, ignorance of the law is no excuse. In fact, on his own oral submission, he knew of my decision to refuse his application to apply for judicial review before the deadline to file an appeal expired.

8. In any event, the length of delay is not the only fact I should take into account when considering whether to grant an extension of time to file an appeal. It is not this court’s duty to reconsider an applicant’s claim but to consider whether the adjudicator of the TCAB made any error of law or whether there is evidence of procedural unfairness or a failure to adhere to a high standard of fairness. The applicant submitted no grounds to support that application for a judicial review but I, nonetheless, examined and scrutinised the adjudicator’s decision. I find there is no merit nor any real prospect of success in any intended appeal.

9. Having considered the delay, the lack of reasonable excuse for the delay and the lack of merit in this application, it would not be in the interests of justice to grant an extension of time. The applicant’s summons dated 26 July 2019 is dismissed.

	(Amanda Woodcock)
	Deputy High Court Judge

The applicant appeared in person.

HCAL 1677/2018

[2019] HKCFI 898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1677 of 2018

BETWEEN

	Hassan 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 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 entered Hong Kong illegally on 29 April 2016 and surrendered on 4 May 2016. He lodged a non-refoulement protection claim on 4 May 2016 which was rejected by the Director of Immigration (“the director”) on 25 September 2017. The applicant filed an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which dismissed his appeal on 6 August 2018. The applicant filed a notice of application for leave to apply for judicial review on 20 August 2018. He did not request an oral hearing. I have considered his application on the papers.

2. The basis of the applicant’s claim is that if he were to return to Pakistan, he faces the risk of harm or death from members of the Pakistan Muslim League-Nawaz (N) (“PML(N)”). Both the Director and the adjudicator set out the applicant’s evidence and claim in detail in their decisions, therefore, there is no need for me to repeat it.

3. The applicant was a supporter of the Pakistan Peoples Party (“PPP”) and he used to be active in the party and help with rallies and recruitment. Between 2000 and 2015, the applicant became embroiled in conflict members of the PML(N) who wanted him to defect or change his allegiance to their party. When he refused, this began a series of verbal threats made to the applicant at various times.

4. There was a rally in September 2015 attended by about 1000 PPP members and 5000 from the PML(N) party. Verbal exchanges and abuse between the two party members escalated to a physical fight when suddenly an unknown person from PML(N) opened fire. Everybody ran in different directions and the applicant realised that three PPP supporters died at the scene, including one who was shot whilst he was stood very close or beside the applicant. On that same day, after he fled, he took a bus to Lahore and stayed with an uncle in hiding. He was in constant fear of his life and 200,000 Rupes was paid to an agent who made travel arrangements for him to leave Pakistan on 21 April 2016.

5. The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

a.  risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);
b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);
c.  risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and
d.  risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

6. The applicant’s supporting affirmation contains no grounds. He only writes that his life was still in danger at home. The applicant was given a further opportunity in January 2019 when this court wrote to him asking, among several questions, if he had any further submissions to make but there was no response.

7. The adjudicator treated the appeal as a rehearing and directed that an oral hearing be conducted. She set out the law and key legal principles applicable to all four grounds. She set out the applicant’s evidence and what transpired during that hearing. She set out the questions she asked and the areas of his evidence which she felt needed clarification, especially where there were discrepancies.

8. The adjudicator set out in great detail the reasons why she rejected the applicant’s evidence. She was not satisfied that he was telling the truth and found that he had fabricated his claims in order to apply for non-refoulement protection and extend his stay in Hong Kong. She found significant inconsistencies and discrepancies in his claim and evidence. His answers in response to those issues were not satisfactory. She found he did not leave Pakistan because he was in fear of his life. He was not credible.

9. She concluded that the applicant had not made out a successful case on any of the four applicable grounds. He was unable to show he was at risk of torture, CIDTP or persecution if refouled to Pakistan. He failed to show that returning to Pakistan would expose him to a real risk of a violation of his right to life so as to constitute a breach of BOR 2. The adjudicator confirmed the decision of the Director.

10. Even though there are no grounds relied on by the applicant, I did examine and scrutinised the adjudicator’s decision to ascertain whether she made any errors of law and whether she analysed the appeal/petition with a high standard of fairness as is required. I considered whether the application of the enhanced Wednesbury test was satisfied.

11. I found no failings on the part of the adjudicator. I found no errors of law nor any evidence of procedural unfairness. She did not fail to adhere to a high standard of fairness. There is no realistic prospect of success and I refuse leave to apply for judicial review.

Dated the 24^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 24/06/2019
Hassan 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 24/06/2019

Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8685/17/10/15/P1715

The Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1994/17 (formerly RBCZ 12258/16)

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

Form CALL-1

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

Related cases with same parties

Files (2)

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