Hasmi Rizwan Imran v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL706/2017

[2018] HKCFI 517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 706 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 claimed to have entered Hong Kong illegally on 13 July 2013 only to be arrested by the police on 19 July 2013.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 24 August 2015 and 26 October 2016.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was heard on 20 December 2016 and the decision handed down on 13 February 2017.

2.The applicant filed a notice of application for leave to apply for judicial review on 3 October 2017.  This application is just shy of five months late.  It should have been filed on or by 13 May 2017 pursuant to Order 53 Rule 4.  If there is a delay in filing this application, then full reasons should be given in the application form and they were not.  No reasons were given in the supporting affirmation.  The delay was not acknowledged at all.

3.The applicant requested an oral hearing date if leave was not granted on the papers, the hearing date was set down for 1 March 2018.  The applicant appeared in person and was requested to give reasons for the delay in the application.  A court will not grant an extension of time to file an application unless there is good reason.

4.The applicant at first blamed the delay on the fact he was separately dealing with his BOR 2 risk claim until I pointed out to him that the adjudicator of the TCAB had dealt with his BOR 2 risk claim at the same time as the torture claim, BOR 3 claim and persecution claim in the decision of 13 February 2017.  The applicant then told the truth and said in September 2017 when he went to report to his Immigration case officer he was told that his case was closed and if he did not want to be detained he had best make this application to the High Court.

5.I asked the applicant if he knew in September 2017 that the TCAB had already rejected his appeal and he said he had no knowledge then.  He said after the Immigration case officer told him his appeal had been rejected he then went to the TCAB office and obtained a copy of its decision dated 13 February 2017.

6.I asked the applicant why he did not receive a copy of it in February 2017 and was it because he had moved house.  He replied yes, he had moved house, changed addresses and had not informed the TCAB.  Therefore, despite knowing that the TCAB decision was pending and it would send him its decision by post he did not inform them of his change of address; he has only himself to blame for not receiving it on time.  I then confirmed with the applicant if the real reason for his delay in making this application for leave to apply for judicial review was because he did not receive the TCAB decision in February 2017 in the post as he had not informed the TCAB of a change of address.  He then agreed that that was the reason for the delay of this application.  He confirmed that it had nothing to do with his BOR 2 claim.

7.I have considered the legal principles for granting an extension of time for judicial review.  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 not insignificant, there is no proper explanation for the delay and there is no good reason for extending time.  This is because the merits of the substantive application, after perusal of the papers and hearing the applicant, are weak.  Moreover, the application does not raise any questions of general public importance.  The extension of time sought is an abuse of process and ought to be refused.  Delay alone is enough to dispose of this application.  However, if I am wrong, I proceed to consider the merits.

9.In his affirmation, the applicant relies on four grounds, in the first ground, he complains of a lack of legal representation provided to him throughout his appeal process.  In ground 2, he then complains of a lack of interpretation service provided to him throughout the claim process, it seems at his beck and call.  The third ground is a submission that the Director’s Notice of Further Decision failed to give a reason for rejecting his BOR 2 claim which has no merit; the Director gives reasons and refers to his previous decision.  In any event, there is no room for a judicial review of this Director’s decision.  The applicant has already utilised the channel of appealing this decision to the TCAB.  I will consider the grounds of this application against the decision of the TCAB only.

10.The fourth ground is a complaint that no one interviewed him before the Director made the decision he had no BOR 2 risk.  I find no merit in this ground and my reasons from the preceding paragraph apply. He also complains that no Immigration officer attended the appeal hearing but I see no procedural issue with this; the Director submitted written submissions and attendance was excused.

11.There is no merit in the first ground; no authority from the higher courts have prescribed that an asylum seeker must have an absolute right to free legal representation at all stages of the proceedings.  The applicant already had the benefit of legal representation in presenting his case to the Director including the presence of a lawyer at the interviews by an Immigration officer.  Thereafter, the duty lawyer service will continue to represent an applicant during his appeal if they are of the view that his appeal has merits.

12.As for ground 2, interpretation service has been provided to the applicant during interviews and at hearings.  It could not be the intention of any authority laying down the principle of a high standard of fairness that it would include such a service at any time an applicant desired.  There are no particulars to this ground and there is no merit in it.

13.None of the grounds put forward by the applicant showed any error of law by the adjudicator.  There was no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision was not Wednesbury unreasonable.  Even if I was wrong to find that delay in his application was enough to dispose of it, none of the grounds were reasonably arguable and there is no realistic prospect of success. I refuse leave for judicial review.

Dated 16^th day of March 2018.

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

Form CALL-1