Case Detail

HCAL 5/2018

[2020] HKCFI 2053

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 5 OF 2018

___________________

BETWEEN
	ASIF FAROOQ	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: 26 August 2020

Date of Decision: 26 August 2020

____________________

D E C I S I O N

____________________

Introduction

1. This is an application dated 29 July 2020 to appeal my decision of 9 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 did attend court for the hearing. He was assisted by a Punjabi 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 He originally made a claim under the UNHCR on 28 March 2006. On 5 May 2009, he lodged a torture claim. In 2012 he withdrew that claim stating he wished to return to Pakistan but on 1 June 2016 he lodged a non-refoulement claim form. He was interviewed by the Director of Immigration (“the Director”) on 28 June and 8 August 2016. The Director dismissed his claim under all heads, by Notice of Decision on 22 August 2016. He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Evan Ruth (“the Adjudicator”), heard him on 10 October 2017. The Adjudicator refused his appeal on 5 December 2017.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 2 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 9 June 2020. He had 14 days from that date to appeal that decision which would have expired on 23 June 2020. By way of summons dated 29 July 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. The applicant stated that he did not receive the Form CALL-1 or Order within a reasonable period of time allowing him to appeal within the time frame. I note this is similar wording and in a similar handwriting to other applications I have received. He gives no other 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 uses today. The documents have been returned to the High Court as unclaimed and it is therefore presumed that they reached their destination. 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]. That includes the ability to receive letters properly at the address given. The consequences of any delay arising from failing to do so will fall upon the litigant.[3]

7. Even if the Court did accept that the explanation given for non‑receipt and the delay is a reasonable one (which it does not), 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. As to his appeal the applicant submits that he wishes the Court of Appeal to review the merits of his case without more. The question for the Court is whether these 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].

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. This was explained in some detail to the applicant when he appeared.

Conclusion

9. The applicant has now been in Hong Kong since 2001. 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.

10. In any event, I have considered his underlying application. It has no merit as explained in the initial refusal of leave. There were voluminous grounds of review without supporting particulars. They also were copied from grounds of review submitted by other applicants. Nothing is gained from so doing. They were without merit. In addition, 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.

11. The applicant’s summons dated 29 July 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 5/2018

[2020] HKCFI 1146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 5 OF 2018

BETWEEN

	Asif Farooq	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 legally on 4 August 2001 and thereafter overstayed. He did not come to the attention of the authorities until 28 March 2006, when he made a claim under the UNHCR. On 5 May 2009, he surrendered to the Immigration Department and lodged a torture claim. He was released on recognisance on 17 May 2009. He withdrew this claim in 2012, stating he wished to return to Pakistan. The applicant submitted a non‑refoulement claim by way of written representation on 24 July, 27 August and 17 September 2015. His non-refoulement claim form was submitted on 1 June 2016.

2. The applicant attended a screening interview on 28 June and 8 August 2016. The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 22 August 2016. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Evan Ruth (“the Adjudicator”), heard his appeal on 10 October 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2. He refused his appeal on 5 December 2017.

Background

4. The applicant is a Pakistani national. He was born on 3 March 1971, in the Punjab. He received 11 years of formal education and worked as a draftsman for two years. He is single and a Muslim. In 1998, the applicant’s father rented out two rooms of their family home to Abu Mursad and Abu Jandal, who they came to know belonged to LeJ, which was a terrorist organisation. When they became aware of their activities and of the movement of weapons into and from their home, the applicant and his father informed the police. This led to a police raid on the rooms and firearms being seized. Eventually, both Abu Mursad and Abu Jandal were arrested but were later released upon conditional bail. In early January 1999, the applicant was assaulted by LeJ members with hockey sticks and left unconscious. He was hospitalised and received sutures to wounds on his leg. His knee cap was dislocated and his face was swollen. The applicant remained in hospital for a week before being discharged. Whilst in hospital, the applicant believes that LeJ members set fire to the two rented rooms. As a result of that fire and telephone threats to the family, the family home was sold and they moved to rented property elsewhere in their home town but the applicant remained hidden in Sialkot and then Karachi before preparing to go to Dubai as he believed his life was in danger. Between February and May 1999, the applicant attempted to find employment in Dubai but failed. He returned to his home in Pakistan on the expiration of his visa. Thereafter, he was again attacked on several occasions by LeJ members and sought treatment for minor injuries. None of these were reported to the police. The applicant decided to flee to China where he came to know about refugee protection in Hong Kong. He returned to Pakistan and remained there between September 2000 and July 2001, working on a part‑time basis and moving between Karachi, Islamabad and Rawalpindi. He obtained a further China visa before returning by road to China and then coming 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 (“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 and Further Decision of the Director

7. The applicant seeks to review the Decision of the Director. 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. I will, for the sake of completeness and to save judicial time, nevertheless consider his application as if it were an application against the decision of the Adjudicator.

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 correctly set out the law and key legal principles including the burden and standard of proof. The Adjudicator noted that the original claim was supported by only a brief outline of the facts and that there had been no substantial attempt to interrogate those facts by the Director. As a result, the applicant was asked to attend a hearing for that to take place. Nevertheless, his evidence before the Adjudicator was vague and he was unable to suggest that the incidents upon which he relied were ones which the applicant himself had personally experienced. There were inherent inconsistencies in the evidence of the applicant and the Adjudicator sought an explanation for them. Those explanations did not assuage the Adjudicator’s view, quite the opposite. The new evidence provided by the applicant was substantially different that his previous evidence and far less credible. He was disbelieved as the Adjudicator stated:

“I might have been prepared to give him the benefit of the doubt at this stage had he not then given oral testimony which was so clearly false that it fatally undermined his case”.

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 decisions of the Director and 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. At first blush, the applicant has submitted 14 grounds of review, which are commonly submitted to this court, without further explanation. They can be synthesised into the following complaints:

I.     The Adjudicator acted irrationally and/or unreasonably, in that he:
a.     failed to consider the concept of state acquiescence and/or the extended form of state acquiescence;
b.     failed to place weight on relevant information;
c.     placed weight on irrelevant information, or incorrect or inaccurate facts;
d.     failed to consider a consistent system of human rights violations;
e.     failed to consider if state protection exists in Pakistan;
f.     failed to consider the COI;
g.     used an improper basis for consideration of internal relocation;
h.     failed to provide adequate reasons; and/or
i.     there was no proper basis for rejecting the applicant’s credibility.
II.     There was procedural impropriety in that the Adjudicator:
a.     made insufficient enquiry;
b.     failed to investigate COI;
c.     failed to call for psychological or psychiatric reports;
d.     applied the incorrect standard of proof; and
e.     the procedure was irregular as the decision maker was not the interviewing officer.

11. There are no particulars provided for any of the applicant’s grounds. They are copied from grounds submitted in other applications for judicial review and, without more, are wholly unhelpful to the applicant and a waste of judicial time. In several respects they are wholly irrelevant and bear no relation to the matters at hand. The applicant has a duty to state the grounds of his intended judicial review and why they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. It is incumbent upon the applicant to make good his grounds, which he has singularly failed to do. Without more, the court is restricted to that which is self-evident from the papers. All of the applicant’s grounds are without merit either for the reasons given above or because the issue does not arise in all the circumstances of this case. In addition, the interviewing officer was delegated to carry out his function by the Director in a lawful and proper manner. There is no issue of irregularity in that respect and in any event this issue is one to be taken on appeal to the TCAB.

Conclusion

12. I have considered the papers and grounds 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.

13. 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 9^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 9 June 2020 Asif Farooq 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 9 June 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4649/16/9/28/P1119 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: RBCZ9002717/17 (formerly 13368/15)

Form CALL-1

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

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