Case Detail

HCAL 41/2018

[2019] HKCFI 2387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 41 OF 2018

________________________

BETWEEN

	SULTAN ZAHID	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: 25 September 2019

Date of Decision: 25 September 2019

________________________

D E C I S I O N

________________________

Introduction

1. This is an application dated 15 August 2019 to appeal my decision of 24 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 an interpreter.

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 1 July 2013. He submitted his initial torture claim form on 23 September 2013 and was interviewed by the Director of Immigration (“the Director”) on 11 December 2013, 9 January 2014 and 27 June 2017. The Director dismissed his claim under all heads, by Notice of Decision on 29 June 2017. He appealed that decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard him on 3 November 2017. The Adjudicator refused his appeal on 22 December 2017.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 9 January 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 24 April 2019. He had 14 days from that date to appeal that decision which would have expired on 8 May 2019. By way of summons dated 15 August 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. 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. He claims he did not receive the Order on time but gives no further explanation. The court file suggests that it was sent to the address given at that time, which was the same address the applicant used for his Form 86 application, but it was returned to sender. He originally said that he had moved from that address some three months ago but the summons has the same address upon it and is dated 15 August 2019. He then changed his stance and said it was two months ago and later suggested that he may have been at a different address. The applicant maintains that he only learnt of the refusal of leave from an officer from the Immigration Department. The fact he did not receive the Form CALL‑1 is entirely his own fault. 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].

6. Even if the court had accepted that the explanation given for the delay was reasonable (which it does not), the court is required to examine whether there is any merit in the applicant’s appeal[3]. Whether there is any such merit will depend upon well‑established legal principles[4] 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 applicant submits that he does not wish to return to Pakistan. 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. This was explained in some detail to the applicant when he appeared.

Conclusion

7. The applicant has now been in Hong Kong since 2013. He has been interacting with various government agencies since that date as he was arrested upon entry. He knows he has an obligation to notify the authorities of his address as a Form 8 holder. The explanation he has offered to this court, as to why he did not receive the Order is not acceptable.

8. In any event, I have considered his underlying application. 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 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.

9. The applicant’s summons dated 15 August 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; Re MK HCMP 2609/2016; Re Gurung Min Bahadur CAMP 9/2018, [2018] HKCA 226

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

HCAL 41/2018

[2019] HKCFI 484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 41 of 2018

BETWEEN

	Sultan Zahid	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 1 July 2013 from China and was arrested by the police on the same day. The applicant made a torture claim on 4 July 2013 and submitted his Torture Claim Form (“TCF”) on 23 September 2013. That claim was rejected on 17 January 2014. He submitted a non-refoulement (“NRF”) claim by way of written representation on 27 January 2014 and his claim was considered under the Unified Screening Mechanism (“USM”) on all other grounds (including BOR 2) but save for torture. His Supplementary Claim Form (“SCF”) in respect of the USM grounds was submitted on 13 June 2017. Prior to that, on 15 July 2016, he was convicted of taking up employment without permission and sentenced to 15 months’ imprisonment. He was discharged from prison on 12 May 2017, shortly before he submitted his SCF.

2. The applicant attended screening interviews on 11 December 2013 and 9 January 2014 in respect of his TCF and on 27 June 2017 in respect of his SCF. The Director of Immigration (“the Director”) dismissed his claim by Notice of Decision (“the Decision”) on 29 June 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 3 November 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 22 December 2017.

Background

4. The applicant is a Pakistani national. He was born on 2 June 1991, in Shinka. He maintains that in 2013, he started a clothes business for which he had borrowed money from his cousin “Nawaz”. Nawaz was a member of the Jamate Islami Party (“JIP”) and the applicant was a member of Tehreek-e-Insaf (“T-e-I”). The business did not thrive and the applicant could not repay the debt. An argument ensued with his cousin and another person over both the non-payment of the debt and the fact that the applicant wished to vote for T-e-I. He was slapped, punched and kicked by them. They threatened to shoot him and then left. The applicant received minor injuries including a cut to his head. He reported the matter to the police but they would not accept the complaint without a bribe. Because of what happened, he fled Pakistan and 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 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.

Decision of the Adjudicator

8. 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 procedure to the applicant and his rights. The applicant wished to rely on the case as outlined in the papers before the Board. He explained why his business had failed and what he had done about it. The Adjudicator analysed the facts presented to him and correctly set out the law and key legal principles including the burden and standard of proof, which he applied to those facts. He found a number of inconsistencies in the evidence and disbelieved the applicant. Nevertheless, he went on to assess the applicant’s claim at its highest and to consider the relevant COI but found that he had failed to establish his claim.

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 no grounds of review. The applicant 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 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.

Conclusion

11. 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.

12. 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 24^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 24 April 2019

Sultan Zahid

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 April 2019

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7765/17/7/146/P1537

Department of Justice for Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1123/17 (formerly RBCZ 2002722/14)

Form CALL-1

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

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Files (2)

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