Case Document

100%Judiciary

HCAL 1967/2018

[2020] HKCFI 219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1967 of 2018

BETWEEN

	Muhammad Fiaz	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 documents only; or
	consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 25 April 2017 be refused; and

(2) Application for leave to apply for judicial review be dismissed.

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 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; and

(5) Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV 8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“the RHC”), by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if the applicant had a fair screening before the Immigration office and the Board and if there are any further grounds in support of the application. In response to the Court’s letter, the applicant appeared before this Court.

2.Pursuant to Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 was amended by adding the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (“the Board”) as the respondent as it is the proper party for the applicant’s application under the law. See Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018) §45.

3.This is the applicant’s application for leave to apply for judicial review against the decision of the Board dated 25 April 2017, in which the Board refused the applicant’s appeal against the Director’s Further Decision refusing his claim by reference to BOR 2 risk.

The applicant

4.The applicant is a Pakistani national. He arrived in Hong Kong on 25 July 2006. On 27 August 2011, he surrendered himself to the police. He raised a torture claim on 3 September 2011.

5.He claimed that if he was refouled to Pakistan, he would be killed by the supporters of Pakistan People’s party (“PPP”) because of his support for Pakistan Muslim League – Nawaz (“PML(N)”). He also feared that he would be arrested by police because of a charge of fighting in August 2001.

6.Simply put, he was involved in a fight between a PPP supporter and his brothers and his group of people of rival party. One of the PPP supporters called, Amir, had killed one of the applicant’s group of people. As a result, Amir and his brothers were arrested, Amir was sentenced to imprisonment. He was afraid that Amir would harm him and the police would arrest him for taking part in the fight.

The Director’s Decisions

7.The Director considered his application in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

8.By Notice of Decision dated 16 September 2014(“the Director’s Decision”) and Notice of Further Decision dated 16 January 2017 (“the Director’s Further Decision”), collectively called (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was unsubstantiated. In the Director’s Decision, the Director considered that the level of risks as he alleged if he returned to Pakistan was low [11]; that state protection was available to him [15] and internal relocation was an option open to him [18]. In the Director’s Further Decision, the Director found that he failed to establish BOR 2 risk.

The Board’s Decisions

9.The applicant’s appeal to the Board against the Director’s Decision was late for one year and eight months. The Board, by its Decision dated 23 September 2016, rejected the applicant’s late filing of his Notice of Appeal for the following reasons:

a. the delay was serious and significant;

b. the applicant had no good reason for the delay; and

c. following the third stage of the United Kingdom Court of Appeal decision in The Secretary of State for the Home Department v Begum (2016) ECWA Civ 122 (03 March 2016) to evaluate all the circumstances of the case, it was just to refuse the application.

10.The applicant’s appeal against the Director’s Further Decision was rejected by the Board by its Decision dated 25 April 2017 without a hearing.

Application for leave to apply for judicial review

11.By Form 86 filed on 18 September 2018, under Order 53, rule 3(2) of the RHC, the applicant applied for leave to apply for judicial review against the Board’s Further Decision only.

12.Order 53, rule 4(1) of the RHC provides that the applicant shall be made promptly and in any event within three months from the date grounds for the application first arose unless the Court considers that there is a good reason for extending the period within which the application shall be made.

13.It is clear that the applicant’s application is out of time, the deadline for him to file his application being 25 July 2017. The delay is more than 13 months.

DISCUSSION

14.The applicant appeared before me. He confirmed that he was treated fairly before the immigration officer.

15.The applicant admitted that he was late for this application. His explanation was that he changed his address and his wife was pregnant. He had to look after his two children. I cannot accept these reasons as it is his duty to keep the Immigration Department and the Board abreast of time of his address for correspondence. The other reasons are simply not sustainable.

16.In Re: Kwok Cheuk Kin v. Leung Chun Ying [2018] HKCA 419 at para. 28, the Court of Appeal held that leave must be obtained from the court first before the court hears the application.

17.The applicant was late for more than 13 months, which must be regarded as seriously undue.

18.The Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015 held that whenever there is a failure to act promptly or within three months, there is “undue delay” [26]. Where there is an application to the court for extension of time for judicial review, the court has to take into consideration: (i) the length of the delay; (ii) explanation for the delay; (iii) merits of the substantive application; (iv) prejudice and (v) questions of general public importance [27(3)].

19.In this case, the merits of the substantive application are the prime consideration. At paragraph 27 (3)(iii), the Court of Appeal held:

“Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion. Where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be” (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ). An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).”

20.Considering the merits of the applicant’s application, I find that there is no merit in his application. The substance of his application is the facts of his claim as set out in paragraphs 5 and 6 above. The Director had considered the merits of his case and concluded that it was a private dispute between two groups of people and the level of risks as claimed was low. Besides, state protection was available to him and that internal relocation was an option open to him. There is no evidence in support of his BOR 2 risk.

21.There was no evidence to show that the Board was in error in coming to its Further Decision. The Board was right to refuse his appeal against the Director’s Further Decision.

22.I find that the applicant fails to show that he has a reasonable prospect of success in his application for judicial review of the Board’s Further Decision.

CONCLUSION

23.Accordingly, I refuse to extend time for the applicant to file his application to apply for leave to apply for judicial review. Accordingly, I dismiss his application.

FURTHER DIRECTIONS

24.It is further directed that:

a. 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 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;

b. 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;

c. 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;

d. if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further direction; and

e. liberty to apply.

Dated the 20^th day of January 2020

	(Mike Mak)
	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 20/1/2020 Muhammad Fiaz 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 20/1/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3876/16/6/66/P1001; BOR 86/17/1/63/P26 Director of Immigration Putative Interested Party’s ref. no.: RBCZ 9001343/16 (Formerly RBCZ 1063/11) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)