Case Document

100%Judiciary

HCAL988/2018

[2019] HKCFI 1905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 988 of 2018

BETWEEN

	MD Imran	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

Application for Leave to Apply for Judicial Review

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

Following:

consideration of documents only

consideration of documents and oral submission by the Applicant in open court

Order by Deputy High Court Judge Josiah Lam:

(1) Application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 24 November 2014 be dismissed ; no extension of time is granted; and

(2) Application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 31 May 2018 be refused.

It is further directed that:

(1)  If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 24 November 2014 to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)  When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions;

(5)  Liberty to apply.

Observations for the Applicant

Background

1.The Applicant is a national of India. He is now aged 32 (DOB: 16 May 1987).

2.The Applicant claimed he would be harmed or killed by his girlfriend’s family. He was a Muslim. His girlfriend was called Sangeeta. She was a Hindu and belonged to a rich powerful family. Her father was a member of the Congress Party.

3.The Applicant said he fell in love with Sangeeta in 2005. They planned to get married but the girl’s family objected.

4.In mid-2007, the Applicant was assaulted by Sangeeta’s brothers. They threatened to kill him. The Applicant was scared but he did not report the matter to the police. He left home to stay in other places but still came upon Sangeeta’s brothers. They assaulted him. The Applicant said he was severely injured by them.

5.On 6 December 2007, the Applicant left India. He arrived in Hong Kong on the next day as visitor. He went to China on 21 December 2007 and came back on 22 December 2007. He overstayed from 6 January 2008. The Applicant was arrested on 28 February 2008. Two weeks later, he raised a torture claim.

6.In the ensuing two‑tier screening process, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture[1] , (ii) risk of persecution[2], (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].

7.On 1 June 2018, the Applicant applied for leave for judicial review.

Timeline

8.Things happened in this order: –

2007-12-7 The entered Hong Kong from India as visitor. He went to China on 21 December 2007. He last entered Hong Kong on 22 December 2007 as visitor.

2008-1-6 The Applicant began to overstay here.

2008-2-28 The Applicant was arrested by the police.

2008-3-15 The Applicant filed a torture claim.

2014-7-28 The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. [“the Director’s decision”]

2014-11-4 The Applicant filed a late appeal to the Board.

2014-11-24 The Board dismissed the Applicant's late appeal. [“the Board’s 2014 decision”]

2016-12-15 The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: BOR2 risk.

2016-12-29 The Applicant failed to submit additional facts by the deadline or thereafter.

2017-1-3 The Director refused the Applicant’s claim with respect to BOR2 risk. [“the Director’s further decision”]

2017-1-17 The Applicant appealed to the Board against the Director’s further decision.

2018-4-10 The Applicant appeared before the Board for appeal.

2018-5-31 The Board refused the Applicant's claim with respect to the fourth applicable ground: BOR2 risk. [“the Board’s 2018 decision”]

2018-6-1 The Applicant applied for leave for judicial review.

Respondents

9.The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.

10.In Form 86, the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.

11.In Re Moshsin Ali, the Court of Appeal ruled “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review of the Director's decisions. Therefore, I shall deal with his application in relation to the Board's decisions only.

The Director's decision

12.In his decision dated 28 July 2014, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's claim with respect to those three applicable grounds.

13.In his further decision dated 3 January 2017, the Director did not accept the Applicant faced any BOR2 risk. The Director refused the Applicant's claim with respect to that last applicable ground.

The Board's decision

2014

14.The Applicant appealed late to the Board against the Director's decision. The Adjudicator decided that appeal on consideration of papers.

15.The Director's decision was issued on 28 July 2014. The Applicant only filed his appeal on 4 November 2014. Excluding the 14-day limitation period, the Applicant was about 2 months and 3 weeks late. He stated in his belated Notice of Appeal that he had health problems but he attached no medical proof.

16.The Adjudicator was not satisfied the Applicant had given any good reason for his delay.

17.Nevertheless, the Adjudicator went on to consider the merits of the Applicant’s case. He found there was no state involvement or state acquiescence of any form. The Applicant was not targeted by the India state or officials. He had not suffered ill-treatment to the minimum level of severity. The complained situation was not on account of any Convention reasons: race, religion, nationality, membership of a particular social group or political opinion. The Applicant had not seen Sangeeta for years now. The Adjudicator found no reason the alleged enemies would still go after the Applicant. The Adjudicator studied relevant country-of-origin information ("COI"). He considered internal relocation was available to the Applicant in any event.

18.The Adjudicator noted that the Applicant did not file his claim until he had been arrested by the police. He further noted the Applicant failed to appear in the screening interviews before the Director and had gone underground for some time without reasonable excuse. The Adjudicator was not satisfied the Applicant was a genuine asylum seeker.

19.The Adjudicator concluded there was no merit in the Applicant's case that obliged him to grant the Applicant extension of time to file his late appeal.

20.On 24 November 2014, the Adjudicator dismissed the Applicant's appeal against the Director's decision in relation to these three applicable grounds: torture risk, persecution risk and BOR3 risk.

2018

21.The Director later considered the Applicant's case with respect to BOR2 risk. In his further decision dated 3 January 2017, the Director did not accept the Applicant faced any BOR2 risk. He refused the Applicant's claim with respect to that last applicable ground.

22.The Applicant appealed within time to the Board on 17 January 2017. The Adjudicator heard him on 10 April 2018.

23.The Adjudicator noted from relevant COI that love affairs between Muslims and Hindus in India were not forbidden. He also noted the Applicant had not seen Sangeeta for many years now. There was no reason the alleged enemies would still go after the Applicant. The Adjudicator studied relevant COI. He was satisfied internal relocation was available to the Applicant in any event.

24.The Adjudicator did not believe the Applicant was a genuine asylum seeker. He did not accept the Applicant faced any BOR2 risk. On 31 May 2018, the Adjudicator refused the Applicant's claim with respect to that last applicable ground.

Grounds of judicial review

25.The Applicant complained about the Director's decisions and the Adjudicator’s decisions. As said in para 11 above, I shall deal with his application in relation to the Adjudicator’s decisions only.

26.The Applicant complained there was no legal representation. He also said there was a lack of language assistance.

27.The Applicant further complained he was given the appeal bundle shortly before the Board hearing and the documents were not read to him.

Court hearing

28.The hearing took place on 19 September 2018. The Applicant was in person. A Hindi interpreter provided service in court.

29.The Applicant complained he had been detained by the Immigration Department for 66 days in 2014. He filed his appeal against the Director's decision during detention. There was no Board hearing in 2014. The Applicant also said he did not receive the Board’s decision dated 24 November 2014. He did not make enquiry of the appeal result with either the Immigration Department or the Board because he did not know what to do.

30.The Applicant alleged he then remained sick for two years. He stayed at home and failed to report to the Immigration Department. He surrendered to the Immigration Department only in 2016. The Director later issued his further decision. The Applicant appeared before the Adjudicator for appeal of the Director's further decision in 2018. He complained there was no legal representation.

31.The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. He had nothing to add.

32.The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his claim.

Discussion

33.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

34.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [7]

Late application for leave for judicial review of the Board's 2014 decision

35.Order 53 rule 3(1) of the Rules of the High Court reads: –

No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

36.Order 53 rule 4(1) and (2) of the Rules of the High Court read: –

(1) 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.

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

37.It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is good reason for extending time. The Applicant must provide good reason for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review.[8] If the court is not satisfied that there is good reason for extending time, then no application for judicial review can be made in accordance with rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[9]

38.In the present case, the Board’s 2014 decision was issued on 24 November 2014. The Applicant only added that to his application for leave for judicial review in court on 19 September 2018. Excluding the 3-month grace period for filing, he was late for almost 43 months.

39.The Applicant said he did not receive the Board’s decision dated 24 November 2014. He did not make enquiry with either the Immigration Department or the Board because he did not know what to do. He also claimed he then remained sick for two years but there was no medical proof. He surrendered to the Immigration Department only in 2016.

40.The Applicant’s explanation was bare assertion and unconvincing. I do not accept he had any good reason for his delay in applying for leave for judicial review in relation to the Board's 2014 decision. The delay was undue and substantial. The prejudice that would be caused to the putative respondent would not be insignificant. I refuse to grant extension of time for the Applicant to apply for leave for judicial review in relation to the Board's 2014 decision.

41.The Court of Appeal has stated clearly that if an applicant could not give good reason for his delay, the court should not proceed to consider if leave should be granted or refused on other grounds (see para 37 above). The Applicant actually failed to state his complaints specific to the Board's 2014 decision. I dismiss his application for leave for judicial review in relation to the Board's 2014 decision.

42.I now turn to the Applicant's application for leave for judicial review in relation to the Board's 2018 decision.

43.The Applicant complained there was a lack of legal representation.

44.The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[10]

45.In fact, the Applicant gave no further instruction to the Duty Lawyer Service (“DLS”) in May 2014 so the DLS had ceased to act for him from 29 May 2014.[11]

46.The Applicant complained there was a lack of language assistance.

47.It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[12]

48.In any event, in the current application a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. The Applicant had much exaggerated his language problem.

49.The Applicant complained he received the appeal bundle only shortly before the Board hearing.

50.According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[13] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[14], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing. There was no evidence the rules had been breached.

51.The Applicant complained the bundle was not read or explained to him. There was no evidence the interpreter in the Board hearing in April 2018 failed his/her duty. In any event, the appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

52.I have reviewed the Board’s decisions under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

53.The Applicant's application for leave for judicial review in relation to the Board's 2014 decision is late. He fails to show any good reason to justify the delay. There are no circumstances that oblige the court to consider his late application in relation to the Board's 2014 decision. That part of his application is dismissed.

54.As to the Applicant's application for leave for judicial review in relation to the Board's 2018 decision, his complaints are not reasonably arguable. He has no realistic prospects of success. I refuse to grant him leave for judicial review in relation to the Board's 2018 decision.

Dated the 2^nd day of August 2019

(Henry Ng)
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 the Applicant’s 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 2/8/2019 MD Imran 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 2/8/2019 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: BOR 45/17/1/22/IN9 & USM 396/14/11/12/IN122 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 1038/08 Pt.2 & RBCZ 9001167/16 (formerly RBCZ 655/08 Pt.2) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.

[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] CACV 54/2018, para 45.

[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[7] CACV 219/2018 [2018] HKCA 570, para 14(1).

[8] CACV 110/2016 Kwok Cheuk Kin, para 17.

[9] Ibid., para 19.

[10] CACV 284/2017 Re Paswan Shibu Lal, para 21.

[11] The Director's decision dated 28 July 2014, para 16.

[12] Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].

[13] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.

[14] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.

Cites 7 cases

Cases cited in this judgment