Case Detail

HCAL 307/2018

[2020] HKCFI 2910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 307 OF 2018

___________________

BETWEEN

	HASSAN 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: 13 November 2020

Date of Decision: 13 November 2020

___________________

D E C I S I O N

___________________

Introduction

1. This is an application dated 28 August 2020 to appeal my decision of 30 June 2020 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 benefit of an interpreter, although he was late.

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 31 October 2013. He submitted a non-refoulement claim on 11 January 2017 and was offered an interview by the Director of Immigration (“the Director”) on 1 February 2017 but failed to attend because he had a hangover. The Director considered his claim upon the papers and dismissed his claim under all heads, by Notice of Decision on 15 February 2017. He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Christian Patrick Carney (“the Adjudicator”), heard him on 10 November 2017. The Adjudicator refused his appeal on 12 January 2018.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 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 June 2020. He had 14 days from that date to appeal that decision which would have expired on 14 July 2020. By way of summons dated 28 August 2020, 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 2B(6). 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[1].

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 of the consideration of whether there is good reason to allow an extension of time. In his Affirmation in support, the applicant accepted he was late but lay the blame at the door of the Court for not sending him the letter or ringing him up. He suggests that he did not receive the Form CALL-1 until 26 August 2020 and gave no reason within his Affirmation as to why that was the case. The Court file suggests that it was properly served upon the address given at that time, which is the same address the applicant currently uses. 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[2]. The consequences of any delay arising from failing to do so will fall upon the litigant.[3]

7. Even if the Court does accept that the explanation given for the delay is a reasonable one, the Court is required to examine whether there is any merit in the applicant’s appeal[4]. Whether there is any such merit will depend upon well-established legal principles[5] including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim. The question for the Court is whether any submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6]. Despite advice, the applicant insisted his sole purpose was to seek a re-hearing.

8. As 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, it follows that an appeal from this Court should not 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 and to indicate the basis of any appeal within his Affirmation in support.

Conclusion

9. The applicant has now been in Hong Kong since 2013. He has been interacting with various government agencies since that date. The explanation he has offered to this Court, as to why he did not receive the order is not acceptable. Indeed, I did not believe him.

10. In any event, I have considered his underlying application. It has no merit as explained in the initial refusal of leave. There were no formal grounds of review below. They were in outline only. The court considered them and explained why they were insufficient to establish a case to go to review. There was no complaint before the Court today as to the decision to refuse leave. The applicant merely wishes the Court of Appeal to consider his situation afresh. 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.

11. The applicant’s summons dated 28 August 2020 be dismissed.

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

The applicant appeared in person.

[1] Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016)

[2] Re Ahmed Zakar CAMP 17/2019, [2019] HKCA 566

[3] Islam Raja Rais v Director of Immigration HCMP 881/2017

[4] Re Mehmood Ikhlas CAMP 28/2019, [2019] HKCA 567; Re MK HCMP 2609/2016; Re Gurung Min Bahadur[2018] HKCA 226

[5] Nupur Mst v Director of Immigration[2018] HKCA 524; Re Md Shohel Sheak[2018] HKCA 714

[6] Re Ansar Muhammad[2018] HKCA 227

HCAL 307/2018

[2020] HKCFI 1400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 307 OF 2018

BETWEEN

	Hassan 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 by boat on 31 October 2013 from China and was arrested by the police on the same day. He was transferred to the Immigration Department on 3 November 2013. The applicant submitted a non-refoulement claim by way of written representation on 7 and 11 November 2013. He was released upon recognisance on 13 February 2014. His non-refoulement claim form was submitted on 11 January 2017.

2. The applicant was provided with a screening interview on 1 February 2017 but failed to attend because he had a hangover. The Director of Immigration (“the Director”) did not consider this a reasonable explanation and proceeded to consider his claim upon the papers. He dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 15 February 2017. The applicant appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Christian Patrick Carney (“the Adjudicator”), heard his appeal on 10 November 2017. The Adjudicator considered his appeal on all applicable grounds but refused his appeal on 12 January 2018.

Background

4. The applicant is a Pakistani national. He was born on 1 May 1994, in Gujrat. He is Muslim and of the Butt caste. He has never worked in Pakistan. His father operated a hotel/restaurant. The applicant’s claim arises out of the distribution of land to his mother and her brother by his grandfather. In 2012, the applicant’s uncle “Afzaal” threatened his mother in order to obtain her parcel of land. In an incident in late 2012, Afzaal threatened the applicant’s mother and the applicant came to her aid by using foul language, which enraged Afzaal, who slapped him and threatened to kill him for his disrespect. The applicant did not seek medical attention as he was unharmed and he did not report the matter to the police because Afzaal had warned him not to. Because the applicant was worried about the death threat, he fled Pakistan in early 2013 and went to China, where he remained until October 2013, at which time he encountered three to four of Afzaal’s friends in Shenzhen and decided to come to Hong Kong. His mother and father still live on the land in question and nothing has happened to them since he left.

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 (“the 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 the 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 Director

7. The applicant seeks to review the decisions of both the Director and the Adjudicator. As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with[1].

Decision of the Adjudicator

8. The applicant was not legally represented before the Adjudicator but he did have the opportunity to say anything he wished in addition to the facts disclosed upon the papers. The Adjudicator analysed the applicant’s claim on all applicable grounds. He arranged for an oral hearing and treated the appeal as a rehearing. The applicant gave evidence with the assistance of a Punjabi interpreter. That was only one incident which was relied upon by the applicant and the Adjudicator asked questions about it and the applicant answered those questions. He was asked about his uncle’s political connections but could not identify the party to which he belonged. Nevertheless, he felt that he had party connections everywhere and that therefore he could not re‑locate. Having given the applicant an opportunity to answer the concerns of the Adjudicator, he thereafter correctly set out the law and key legal principles including the burden and standard of proof and applied them to the limited facts before him.

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 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

10. There were outline grounds of review. He maintains that the process was unfair; no one interpreted the materials, he had no legal representation and the interpreter only interpreted that which the Adjudicator wished him to interpret. He was stressed and did not understand the proceedings. It was also a long time ago and he had a poor recollection of events. The applicant also asks for a re-hearing of his appeal. He has not complained of any specific procedural irregularity, unfairness or unreasonableness save for lack of legal representation and the poor quality of interpretation. I am not sure how he would know that the interpretation was of poor quality unless he spoke English to a better standard than he suggests. The facts covered by the interpretation were of the most basic kind. I doubt that there was room for a misunderstanding. The applicant has a duty to state the grounds of his intended judicial review and show 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.

11. As to the issue of legal representation, the applicant was represented by the Duty Lawyer Service before the Director, or would have been if he had attended as planned. He had the benefit of that legal advice for the presentation of his case, which was ultimately considered on the papers because of the conduct of the applicant and he does not suggest that anything was missing or had yet to be added. Having been unsuccessful at that stage, the Director of Legal Aid considered whether his case had sufficient merit to grant him further representation before the TCAB and decided it did not. That is not surprising. There is no absolute right to free legal representation at all stages of proceedings[2]. The applicant already had the benefit of legal representation before the Director (if he had availed himself of it) and had nothing to add before the Adjudicator over and above the answers he gave to the questions posed.

12. As to language assistance, the applicant had the benefit of an interpreter throughout. He did not make any complaint about the lack of interpretation or lack of understanding at the time and all of the relevant areas were canvassed with him. There is no merit in this ground.

13. As for his poor recollection of events, that did not prejudice the applicant as he had all of the facts contained within the papers before the Adjudicator. There were very few applicable facts. This was not a complicated case. The delay was to be placed at the door of the applicant in any event.

Conclusion

14. Despite the fact that the applicant did not submit any formal grounds of review, I have considered the papers and his general grounds carefully. In particular, I have considered his claim as to lack of proper interpretation, which I have addressed above. I have not found any error of law or procedure by the Adjudicator. 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; enquired about all relevant matters; gave the applicant a reasonable opportunity to state his case and enquired into inconsistencies appropriately. There is no criticism of his determination, which was open to him on the facts and reasonable.

15. 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 June 2020.

	(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 refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must:
a) file any notice of appeal within 14 days from the date of judgment or order; and b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the Registrar: (i) a copy of the sealed judgment or order and copy of the reasoned decision; and (ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and e) comply with Order 59 of the Rules of the High Court to properly progress the appeal.		Sent to the Applicant on 30 June 2020 Hassan 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 June 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6336/17/2/335/P1366 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: QA T/C 33/17 (formerly RBCZ 815/14)

Form CALL-1

[1]Re Moshsin Ali CACV 54/2018; [2018] HKCA 549

[2]Re Rizwan[2018] HKCA 162; Re Zunariyah[2018] HKCA 14; Re Zahid Abbas[2018] HKCA 15; Re Tariq Farhan[2018] HKCA 17.

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

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