Azam Sher v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1704/2018

[2019] HKCFI 2348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1704 OF 2018

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 be refused.

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

1.The applicant is a Pakistani national claimed to have entered into Hong Kong illegally from mainland China on 21 October 2007.  He was arrested on 28 October 2007.  The applicant’s non‑refoulement claim history is long and protracted.  He lodged a torture claim on 11 November 2007.  It was withdrawn at his request on 30 June 2010.  At the applicant’s request it was reopened but on 23 December 2013 his torture claim was refused.  He made a non‑refoulement protection claim under the Unified Screening Mechanism in 2016.  On 21 February 2017, the Director of Immigration (“the Director”) rejected his non‑refoulement claim on all other applicable grounds other than a torture risk which had already been dealt with.

2.The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was rejected on 1 March 2018.  He filed a notice of application for leave to apply for judicial review on 21 August 2018.  He did not request an oral hearing therefore, I will consider his application on the papers.

3.This notice of application was filed late; it was not within three months of the date of the adjudicator’s decision (Order 53 Rule 4).  It was just under three months late.  His notice of application does not set out any reasons for the delay as it should.  In fact, it does not acknowledge the application is late. It does not seek an extension of time to file this application as it should. His affirmation in support of his application makes no mention of the delay nor gives any reason for the delay.  In fact, it only states that the applicant is not satisfied with the TCAB decision and would like to apply to judicial review it.

4.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 the public administration and whether the application raised any questions of general public importance.

5.The delay is not insignificant, there is no explanation for the delay and there is no good reason for extending time.  In fact, there are no grounds put forward to support this application.  The application, even on a review of the papers, does not raise any questions of general public importance.  Delay alone is enough to dispose of this application.

6.In any event, I did consider the adjudicator’s decision and the reasons he rejected the applicant appeal/petition.  The adjudicator of the TCAB analysed the applicant’s claim under all applicable grounds other than a torture claim;

a. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

b. risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

c. risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

7.The adjudicator did arrange for an oral appeal hearing, on 7 February 2018 and a notice of hearing was sent to the applicant’s last known address, that address provided by him in his notice of appeal/petition.  The applicant failed to appear on the hearing date.  No explanation was ever received by the TCAB from the applicant to explain his absence.

8.Pursuant to Section 15 of Schedule 1A of the Immigration Ordinance, a notice was sent to the applicant by letter which stated that unless within seven days of that notice the applicant provided a satisfactory written explanation of his failure to attend the appeal hearing together with any supporting documentary evidence, the TCAB would determine his appeal in his absence.  No explanation was received by the TCAB within seven days and the TCAB decided to determine the appeal/petition in his absence.

9.The adjudicator correctly set out the law and key legal principles applicable to the four grounds.  He set out the country of origin information that he took into consideration.  He set out the applicant’s background and immigration history.  As the applicant was absent he set out in full detail the summary of the applicant’s case as set out in his torture claim form and in his supplementary claim form.  He also set out all the questions and answers from the two interviews with the applicant by senior immigration officers.  He correctly reiterated that it was incumbent upon the applicant to satisfy the TCAB that there is a real risk or chance, or that there are substantial grounds for believing, that he would suffer the harm he claims to fear if he were to return to Pakistan.

10.The adjudicator considered all the evidence that out in the applicant’s claims and interviews.  He found it very vague and general in nature, and amounted to unsupported and unreliable evidence.  He found the applicants claim largely based on hearsay and speculation; he actually had no personal knowledge or experience of the claims he made.  He did not find the applicant’s evidence credible.  The adjudicator gave full reasons for those findings in his decision.  The adjudicator could not find the applicant had made out a case for non‑refoulement protection and confirmed the decisions of the Director.

Leave to apply for judicial review

11.The applicant has wrongly proposed both the Director and the TCAB as respondents in his Form 86 but in his affirmation he seeks to judicial review the decision of the TCAB because he was not satisfied with it.  There is no mention of the Director’s decisions.

12.I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB would have treated the appeal/petition as a de novo hearing or rehearing.  The applicant would have covered all mistakes he says the Director made in his notice of appeal to the TCAB.

13.The applicant failed to attend the TCAB appeal hearing and it is not a ground of this application that the decision to determine that appeal without a hearing was unfair or a procedural irregularity.  This would mean the applicant admits it was his own mistake that he failed to attend the appeal.  To now allow him to go back to seek leave to judicial review both decisions cannot be the right course of action to take under such circumstances; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances.  Those circumstances do not arise here.

14.There are no grounds in his affirmation but I have nonetheless considered with rigorous examination and anxious scrutiny the papers and the TCAB decision.  I find the adjudicator’s decision to proceed without another oral hearing reasonable and justified.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  Substantial decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  In my view, the same applies to the decisions of the Director

15.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated the 2^nd day of October 2019

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