Case Document

100%Judiciary

HCAL 356/2018

[2020] HKCFI 1405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 356 OF 2018

BETWEEN

	Muhammad Naveed	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 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 for judicial review be refused.

Observations for the Applicant:

Procedural history

1.The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 2 March 2008. His NRF claim form was never completed. The Immigration Department, wrote to him on 27 June, 18 July and 20 July 2016 respectively, informing him that his NRF claim form must be completed by 25 July 2016. He did not complete it by that date, nor did he seek an extension of time to do so. As a result, the Director of Immigration (“the Director”) treated his NRF claim as withdrawn as of 26 July 2016. A Notice of Deemed Withdrawal was issued on 27 July 2016.

2.The applicant sought to re-open his claim by letter dated 16 August 2016. The Director wrote to the applicant on 23 August 2016, requesting him to provide sufficient evidence in writing to satisfy an Immigration Officer that, due to circumstances beyond his control, he had not been able to return the completed NRF claim form within the time limit. He was required to do this by 30 August 2016. He did not do so. That application was therefore refused by the Director on 2 September 2016.

3.The applicant sought to appeal that decision but was out of time as his Notice of Appeal was dated 16 August 2017, almost a year later. The adjudicator of the Torture Claims Appeal Board (“the TCAB”), Mr Bruce Henry (“the Adjudicator”), dealt with the matter on paper on 23 February 2018 and explained his reasons for so doing. The Adjudicator considered section 37ZV(2) and section 37ZT, which deals with late filing of a Notice of Appeal and the requirement for reasons and documentary evidence in support. The Adjudicator dealt with the application as a preliminary issue and considered those matters as required under section 37ZT(2)(a) & (b). Having considered all relevant material, the Adjudicator refused the application to allow late filing of the Notice of Appeal.

4.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 March 2018 and did not request an oral hearing. The matter was therefore considered on the papers.

Decision of the Director

5.The applicant seeks to review the decisions of both the Director and the Adjudicator, both of which were solely focused upon procedural failure by the applicant. As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal in accordance with the requisite legislation, the decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with[1].

Decision of the Adjudicator

6.The Adjudicator dealt with the application for late filing appropriately. It was dealt with as a preliminary matter and in accordance with the appropriate legislation and authorities which the Adjudicator cited in his reasons for decision.

Leave to apply for judicial review

7.Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. This is an application to apply for leave to judicially review the decision of the Adjudicator. The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

8.There were no grounds of review as such. In his Affirmation in support, the applicant merely states that the decision of the Adjudicator was unfair and unreasonable without more. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

9.Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. The applicant has taken a cavalier approach to progressing his claim from the beginning and failed to properly explain his failure to submit documentation on time. I have not found any error of law or procedure by the Adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. There is no criticism of the Adjudicator’s determination, which was open to him on the facts and eminently reasonable.

10.In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.

Dated the 30^th day of June 2020.

	(Marcus Wong)
	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 refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must:
a) file any notice of appeal within 14 days from the date of judgment or order; and b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the Registrar: (i) a copy of the sealed judgment or order and copy of the reasoned decision; and (ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and e) comply with Order 59 of the Rules of the High Court to properly progress the appeal.		Sent to the Applicant on 30 June 2020 Muhammad Naveed 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 30 June 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8172/17/8/210/P1607 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: L/M (14462) in ImmD RA 7/37/C (formerly RBCZ 605/08)