Case Document

100%Judiciary

HCAL401/2017

[2018] HKCFI 409

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 401 of 2017

BETWEEN

	Saqlain Muhammad	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 refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Pakistani national who was refused permission to land on 18 February 2015 but he submitted a written signification to seek non-refoulement protection in Hong Kong. Therefore, he was transferred to the Immigration Department immediately. His claim was rejected by the Director of Immigration (“the Director”) on 19 May 2015. He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which conducted an appeal hearing on 22 July 2015 and rejected his appeal on 12 August 2015.

2.On 20 December 2016, the Director issued the Notice of Further Decision, and in it he had considered the ground for non-refoulement protection in relation to the right to life under Article 2, the BOR 2 risk and rejected that risk claim. The applicant lodged an appeal/petition to the TCAB which reviewed all the material and information before deciding it was not necessary to hold another appeal hearing in relation to the BOR 2 risk. The TCAB rejected his appeal on this claim on 23 June 2017. The applicant filed a notice of application for leave to apply for judicial review on 13 July 2017.

3.In his notice, the Form 86, it appears the applicant applies for leave to judicial review the decisions of the Director and the TCAB which must mean those made in 2015 or about 26 and 23 months before the application is filed. He mentions no dates but does refer to those decisions in his grounds.

4.The applicant did request an oral hearing in the Form 86 and the hearing was set down for initially 8 November 2017 but adjourned for the applicant to appeal the Director of Legal Aid’s refusal to grant him legal aid. The hearing was adjourned to 27 November 2017 where the applicant appeared in person.

Order 53 rule 4 Delay in applying for relief

5.An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made; Order 53 rule 4. In his affirmation the applicant is required to give an explanation if there has been a delay in making the application. Here, there is no explanation for the delay and the delay is substantial. There is a delay of almost 26 months between the decision of the Director and the application and a delay of almost 23 months between the adjudicator’s first decision and the application. There is no delay in applying for leave to judicial review the TCAB’s second decision dated 23 June 2017.

6.In any event, it is my view that there is no room for the applicant to judicial review the Director’s decision unless there are exceptional grounds, for example an appeal point that was not dealt with by the TCAB for some reason. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or a rehearing. This is why I am of the view there is no room to judicial review the Director’s decision as well. This leaves me to decide whether there should be an extension of time to apply for leave to judicial review the TCAB’s first decision.

7.I have considered the legal principles for granting an extension of time that have been set out in AW v Director of Immigration & anor, CACV 63/2015, 3 November 2015. The following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and to the public administration and whether the application raised any questions of general public importance.

8.The delay is very significant and there is no reason for the delay. There is no good reason to consider an extension. This is because the merits of the substantive application after perusal of the papers are weak. Moreover, the application does not raise any questions of general public importance. I therefore limited this leave application to the TCAB’s second decision of 23 June 2017 which relates only to the applicant’s appeal of the Director’s rejection of his BOR 2 risk claim.

Background and the TCAB decision of 23 June 2017

9.The basis of the applicant’s claim was that if he were to return to Pakistan he would be at risk of harm from two named entities a man named Tariq and people from the Pakistan Muslim League (N) party. In the 2013 elections he supported an opposition party, the PTI party by putting up posters and encouraging other villagers to vote for this party. His problems began in September 2014.

10.In the space of about six to eight weeks he was assaulted three times by a group of five or six men who said they were sent by Tariq to teach him a lesson for promoting the opposition party. On each occasion, he made a report to the police who told him that they would investigate and look into the matter. On the third occasion he was assaulted, they used wooden sticks and he was beaten unconscious and ended up in hospital. The applicant was discouraged by the lack of police progress. His friends decided he should relocate for his own safety and he hid in Karachi for three months until arrangements were made for him to fly to Hong Kong.

11.The adjudicator’s first decision is very detailed and her analysis and consideration of the applicant’s claim and evidence very thorough. She clearly had a very good grasp of his facts and the situation. I can therefore understand why she decided that it was unnecessary to hold a second hearing to deal with the BOR 2 appeal/petition.

12.Subsequently, the Director had invited the applicant to submit additional facts in relation to his BOR 2 claim if he had any, on or before 18 November 2016. According to the adjudicator’s decision, the applicant did submit information but the Director found the additional information did not help to further substantiate his BOR 2 risk. This information was a repetition of his previously submitted information as well as some more information on his enemy.

13.The adjudicator considered Article 2 and its subsections and went on to make a finding that the applicant was not at risk of harm from capital punishment inflicted by the Pakistani government nor was facing any harm from the Pakistani government that would place his life at risk. It had not been shown that there is or will be a necessary and foreseeable breach of the rights protected by BOR 2. She then went into some detail of her past findings of material facts from her very detailed decision dated 12 August 2015 that support this finding.

Leave to apply for judicial review

14.The applicant had no grounds that directly related to the BOR 2 appeal. He reiterated in oral submissions that his life was still in danger in Pakistan and that he was still trying to obtain medical evidence from home as well as raise funds for legal representation.

15.I went on to consider with rigourous examination and anxious scrutiny the adjudicator’s decision. The fact she did not arrange a second oral hearing does not trouble me in view of the depth and detail of her first decision. In addition, the applicant had not submitted any new evidence, there were no issues of law or credibility that had to be dealt with in his presence. An oral hearing is not as of right. It is a decision made by the adjudicator in his or her discretion.

16.I considered the general principle as it is set out in the case of ST v Betty Kwan & Ors [2014] 4 HKLRD 277 (paras 20-36). I am satisfied that the adjudicator has not committed any procedural irregularity in not conducting a second oral hearing. The adjudicator’s review of the Director’s decision had not involved any resolution on the facts or real issue of credibility or raised a question of law. There was no error in the exercise of her discretion. The applicant was not prejudiced.

17.In my judgement, the applicant’s application is not reasonably arguable. There is no realistic prospect of success therefore I refuse leave for judicial review of the adjudicator’s decision dated 23 June 2017.

Dated 5^th day of March 2018.

	(Alan Ngan)
	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

Notes for 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 5/3/2018 Saqlain Muhammad 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 5/3/2018 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1631/15/6/17/P491 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 442/15 (formerly RBCZ131/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)