Case Detail

HCAL 170/2018

[2019] HKCFI 2048

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 170 OF 2018

___________________

BETWEEN
	RAZA WALEED	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: 16 August 2019

Date of Decision: 16 August 2019

___________________

D E C I S I O N

___________________

Introduction

1. This is an application dated 20 June 2019 to appeal my decision of 30 April 2019, 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 assistance of a Punjabi interpreter although he does speak some limited English.

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 18 March 2016 and was arrested the same day. He submitted a non‑refoulement claim form on 24 May 2016 and was interviewed by the Director of Immigration (“the Director”) on 24 June 2016. The Director dismissed his claim under all heads, by Notice of Decision on 14 July 2016 and by Notice of Further Decision on 22 March 2017. He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard him on 13 December 2017. The Adjudicator refused his appeal on 23 January 2018.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 5 February 2018 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 30 April 2019. He had 14 days from that date to appeal that decision which would have expired on 14 May 2019. By way of summons dated 20 June 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.

6. 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 (but not all) of the consideration of whether there is good reason to allow an extension of time. He did not do so by way of supporting affirmation. Before the court today, he claims he did not receive the Order on time because he had moved into his new address in March 2019. He had relied upon his friends to look out for any correspondence for him. They did not give him the correspondence from the court and he found out about the refusal of leave from the Immigration Department when he reported on 14 June 2019. The court file suggests that it was properly served by registered post upon the correct address given at that time. 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].

7. The applicant was late by some 36 days. He maintains that as he was already late by the time he knew of the decision, which was on 14 June, he sought help in order to make an application for extension of time. This he eventually did on 20 June 2019. Even if the court does accept the reasons given for the delay, the court is required to examine whether there is any merit in the applicant’s appeal[3]. The applicant was asked but could not provide any grounds for his appeal. He was refreshingly honest and stated that he did not want to be imprisoned by the Immigration Department and sent home to Pakistan.

8. The applicant understood that the role of the court in judicial review is not to provide a further avenue of appeal from the decisions of the Director and the Adjudicator[4]. It follows that an appeal from this court cannot be founded upon any attempt to appeal those same decisions. It is an appeal from the decision of this court and the applicant should look to draft grounds of appeal on that basis. The applicant could not do so.

Conclusion

9. Even though the applicant’s delay must be placed at his own door, the court is required to consider whether the applicant has an arguable appeal, which necessitates a further consideration of the underlying merits of his claim. 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 wishes the Court of Appeal to consider his situation afresh in order to delay the inevitable. Having considered the length of delay, reason for the delay, underlying merits of his application and grounds of appeal, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

10. The applicant’s summons dated 20 June 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

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

HCAL 170/2018

[2019] HKCFI 18

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 170 of 2018

BETWEEN

	Raza Waleed	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 on 18 March 2016 from China and was arrested by the police on the same day for illegally remaining. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 22 March 2016. He was released upon recognisance on 21 April 2016. His NRF claim form was submitted on 24 May 2016.

2. The applicant attended a screening interview on 24 June 2016. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 14 July 2016 and by Notice of Further Decision (re BOR 2) on 22 March 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard his appeal on 13 December 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 23 January 2018.

Background

4. The applicant is a Pakistani national. He was born on 11 June 1991, in Azad Kashmir. He had 10 years of formal education and worked as a salesman from 2010 to 2013. The applicant owned a parcel of land, which a man called “Shakeel” wished to takeover. Shakeel was a prominent member of the Pakistan Peoples Party (“PPP”). In December 2014, he and 10 to 15 men came to the applicant’s house to demand that the applicant hand over the land to Shakeel for free. Shakeel and these men were armed with wooden clubs, knives, pistols and a Kalshnikov rifle. He threatened to kill the applicant if he did not hand over his land. He then left without harming the applicant. A few days later, Shakeel and 20 men returned to his home. They were carrying guns. Shakeel once more demanded transfer of the land. The applicant was punched, kicked and hit with a wooden club for 15 to 20 minutes. He attended a local clinic for treatment and was bandaged and prescribed medication for his injuries which did not appear to be serious. The applicant reported this incident to the police but no arrest ensued. In order to avoid Shakeel, the applicant left his home and went to Samwal Sharif but in March 2015, Shakeel tracked him down and along with five to six unknown men carrying Kalashnikov rifles and pistols, he was once again slapped, punched and kicked. Shots were fired into the air. The attack lasted 10 minutes before the applicant was able to escape. After that incident, the applicant learned that Shakeel had taken over his land. The applicant went to Islamabad and then to Lahore for fear of being found and eventually came to Hong Kong.

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 a 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 both 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 of the Adjudicator

7. The applicant seeks to review the Decision of the Adjudicator. 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 explained the purpose of the hearing and the procedure to be adopted. The applicant had nothing to add. Having given the applicant a fair opportunity to add to the facts already before the him, the Adjudicator correctly set out the law and key legal principles including the burden and standard of proof. He analysed the facts, applied the law to them and explained why he found that the applicant had not established his case to the requisite standard.

Leave to apply for judicial review

8. 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 Decision of 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

9. There were no grounds of review. The applicant simply stated that it was unfair. He seeks a re-hearing of his appeal. He has not complained of any 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

10. Despite the fact that the applicant did not submit any grounds of review, 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 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 his determination, which was open to him on the facts and eminently reasonable.

11. 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 the 30^th day of April 2019.

(Marcus Wong)
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 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 30 April 2019

Raza Waleed

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 30 April 2019

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4231/16/7/201/P1061

Department of Justice for Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9000616/17 (formerly RBCZ 11232/16)

Form CALL-1

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

Related cases with same parties

Files (2)

	consideration of the documents only; or
	consideration of the documents and the Applicant being present/absent in open court