Case Document

100%Judiciary

HCAL 476/2019

[2020] HKCFI 761

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 476 of 2019

BETWEEN

	Khan Mushtaq	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 28 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.This is the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 28 April 2017 (“the Board’s Decision”), with the Director of Immigration (“the Director”) as the interested party.

2.Leave was given to the applicant to amend Form 86 by deleting the Director as the respondent and the Board as the interested party.

The applicant

3.The applicant is a Pakistani national. He came to Hong Kong illegally on 31 October 2013 and was arrested by police on the same day. He lodged his non-refoulement claim on 5 November 2013.

4.He claimed that if he refouled, he would be harmed or killed by his relatives because of a land dispute.

5.He inherited a piece of land from his father in 2009, which was valued at 5 million Rupees. His relatives offered to buy it from him for 1 million Rupees. He refused. Between the period of 2010 to 2013, they kept on threatening him that if he refused, he would be killed. They went to his home and shouted the threats. They even fired gunshots to the air. On one occasion, he and his brother were attacked by them by using iron rods. He and his brother were injured and had to be hospitalized. His brother died because of the injury. It was because one of his relatives was a Senior Head Officer at Islamabad Police Station and another one was related to a former Home Minister of Punjab, police did not register his complaint after the attack. He had gone to work in Dubai between 2010 and 2013. When he returned to Pakistan, he came across his relatives and they threatened and molested him. He came to Hong Kong in October 2013. He learned from his son that his relatives might have incriminated him for the Bomb Blast.

The Director’s Decisions

6.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. persecution with 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. 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”)

7.By Notice of Decision dated 8 December 2015 and Notice of Further Decision dated 14 November 2016, collectively called (“the Director’s Decisions”), the Director refused his application. The Director found that the behavior of his relatives showed no real intention of causing any serious harm on him or to kill him [12]; that state protection was available to him [13] and that internal relocation was an option open to him [14]. His BOR 2 risk also failed. See paragraph 6 of the Director’s Further Decision.

The Board’s Decision

8.The applicant appealed and attended a hearing before the Adjudicator on 29 November 2016.

9.By the Board’s Decision, the Board refused his appeal and confirmed the Director’s Decisions. For the reasons set out in paragraphs 56-73, the Board found that it did not accept that the applicant would be killed or suffer Torture risk, BOR 2 risk or BOR 3 risk; that there would be state protection for him [73 & 80] and that internal relocation was an available option for him [88-93].

Application for leave for judicial review

10.By Form 86 dated 19 February 2019, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Board’s Decision.

11.He relied upon the grounds below.

1. The Board did not advise him to obtain medical report in support of his claim, but it said that “it is not likely that pain or suffering sufficiently severe as to amount to torture would be inflicted” in paragraph 75 of the Board’s Decision.

2. His family was recently arrested for the accused Bomb Blast and he would be arrested if he returned to Pakistan.

3. Medical reports should support Torture risk as decided in Mallawa Arachchige Amitha Priyanganie Mallawa Arachchi v Wesley Wong Esq. [2014] HKEC 1490.

DISCUSSION

12.The applicant appeared before this Court and confirmed that he was able to express himself freely and fully before the Immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decisions to him. His friend explained the Board’s Decision to him.

13.He was aware that his application was late. The Board’s Decision is dated 28 April 2017 and he filed Form 86 on 19 February 2019, a delay of more than 21 months. He gave the explanation that he did not receive the Board’s Decision, not until he attended the Immigration Department for reporting and he was notified that the Board had rejected his appeal. He did not say that he had changed his address. I do not find this explanation attractive.

14.In Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28, the Court of Appeal held that the applicant cannot proceed with the application for leave to apply for judicial review without extension of time for them to file their application out of time.

15.In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

16.I put the Board’s findings above to him and ask him for his comments. He said that he did not have any comments.

17.Ground (1) fails as the Board has no duty to give him legal advice. The burden is on the applicant to prove his case. High standards of fairness only require the Board to assist him to obtain information or evidence if he raised it before the Board. He did not raise this issue at the hearing. Ground (3) fails as well.

18.There is no evidence as to why his family was arrested for the accused Bomb Blast. The Board had found that this evidence was not credible. See paragraph 68 of the Board’s Decision. Ground (2) fails.

19.I find that the applicant is unable to show that his intended appeal has any reasonable prospect of success.

CONCLUSION

20.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to extend time for him to file his application for leave to apply for judicial review out of time. Accordingly, I dismiss his application.

FURTHER DIRECTIONS

21.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 applicantmust 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 directions; and

e. Liberty to apply.

Dated the 12^th day of May 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 12/5/2020 Khan Mushtaq 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 12/5/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2825/15/12/154/P765 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1319/15 & RBCZ 9000107/16 (Formerly RBCZ 798/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)