Hussain Nadeem v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1162/2017

[2018] HKCFI 1920

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1162 of 2017

BETWEEN

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 to extend time be refused.

Observations for the Applicant:

Procedural history

1.The Applicant entered Hong Kong illegally on 1 December 2007.  He was arrested by the police on 1 March 2008 and submitted a non-refoulement (“NRF”) claim by way of written representation on 13 March 2008.  He was released upon recognisance on 20 March 2008.  His NRF claim form was submitted on 2 September 2014.

2.The Applicant finally attended a screening interview on 2 July 2015, having been unable to attend on two previous occasions.  On 21 May 2015, he was asked to reply to a List of Questions (“LOQ”).  He replied to the LOQ on 2 June 2015 but thereafter asked if he may be heard and a hearing date was set.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 9 July 2015.  The Adjudicator of the TCAB, Mr Gerrard Paul Muttrie, conducted a paper review of the Decision and refused his appeal on 21 April 2017.

Background to claim

3.The Applicant was born in Kashmir, is single, a Malik and a Sunni Muslim.  He is a tailor by trade.  He is a supporter, but not a member, of All Azad Jammu & Kashmir Muslim Conference (“AJK”).  In 2007, the Applicant was badly beaten by two members of the opposition Pakistan People’s Party (“PPP”).  He suffered a broken arm and injuries to his head and legs.  The Applicant knew his assailants and identified them to the police but the investigation was not proceeded with.  A week after discharge from hospital, the same two assailants assaulted him once more and threatened to kill him.  The Applicant did not receive serious injuries from this assault but was bruised.  The second incident was not reported because the police had taken no action on the first, which had been far more serious.  The Applicant made arrangements to come to Hong Kong because he said he feared for his life.  Shortly before he left, the Applicant met his assailants once more, although on this occasion he managed to escape.  He left Pakistan on the strength of his own passport without hindrance.

Form 86 out of time

4.In accordance with Order 53 rule 3, the Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review.  This was dated 29 December 2017.  Under Order 53 rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose.  Where the relief sort is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision.  In this case time ran from 21 April 2017 and expired on 21 July 2017.  The Notice of Decision was sent to the Applicant’s registered address; the same address he relies upon for these proceedings.  The Applicant has submitted no explanation for his delay and has not sought leave for an extension of time.  I have never the less considered the principles[1] applicable to granting such an extension if an application had been made and those are:

(1)  the length of delay;

(2)  the reasons for delay;

(3)  the prospects of success in the intended appeal; and

(4)  the prejudice to the putative respondent if extension of time were granted.

5.In this case the Applicant was late by 160 days and has not offered any explanation for this delay.  In view of that, he must satisfy the court that there are real prospects of success in his intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted.  The Director considered his case in some detail and gave him more than one opportunity to make his case.  The Adjudicator placed the Applicant’s case at its highest, but nevertheless went on to confirm the Director’s Decision.  There is no reason at all before the Court as to why an extension of time for leave to apply for judicial review should be given.  There were no grounds provided for leave to judicially review the decision of the Director and Adjudicator either.  The Applicant’s claim as explained above is not reasonably arguable, I can find no error of law or procedure in the Decisions made and he does not have a realistic prospect of success.

6.This application is dismissed as being out of time.

Dated 16^th day of November 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