Jami Mahmood v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 930/2017

[2020] HKCFI 1926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 930 OF 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 entered Hong Kong illegally on 20 June 2006 and was arrested by the police on the same day.  The applicant originally made a torture claim under Part VIIC of the Immigration Ordinance, Cap 115 on 23 June 2006 and was released upon recognisance on 2 November 2006.  On 24 October 2008, the applicant was convicted of possession of a dangerous drug and fined $1,000. He was arrested once more on 19 September 2010, this time for theft but released without charge and then on 23 October 2010, he was arrested for fighting in a public place and bound over to keep the peace.  The applicant’s torture claim was rejected on 5 October 2012.  His appeal against that decision was refused on 4 December 2012.

2.Thereafter, the applicant submitted a non-refoulement claim by way of written representation on 22 February 2013, which did not include a further consideration of his torture claim.  His supplementary claim form was submitted on 26 January 2015.

3.The applicant attended 10 screening interviews in respect of his original claim and a further interview in respect of his claim under the Unified Screening Mechanism on 14 December 2015. The Director of Immigration (“the Director”) dismissed his claim on all grounds (not including that under BOR 2 and torture) by Notice of Decision (“the Decision”) on 21 December 2015 and by Notice of Further Decision (re BOR 2) on 5 April 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Tam Kwok‑wah, Jerry (“the Adjudicator”), heard his appeal on 1 June 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 21 June 2017.

4.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 November 2017 and is out of time.  He did not request an oral hearing.  The matter was therefore considered on the papers.

Background

5.The applicant is a Pakistani national.  He was born on 20 May 1983, in Pakistan and had very limited schooling and a troubled upbringing.  In 2002, at the age of 19, the applicant’s father was shot dead.  The applicant joined Sepa-e-Sahaba (“SES”), a secret organisation, which was his father’s political party, in order to seek revenge against the Shiya Party (“Shiya”), whom he believed had killed him.  According to the applicant, once it became known that he had joined SES, members of Shiya made false accusations against him to the police, which resulted in his arrest and torture.  He was released after three weeks and treated for his injuries at home.  In retaliation, once he had recovered from his injuries, the applicant attacked a member of Shiya and broke his hands and legs.  After that, the applicant fled to Lahore and paid 20,000 Rupees for a China visa, leaving for China on 18 June 2006.

6.Since coming to Hong Kong he has married an Indonesian female who is also an asylum seeker and they have three children of the marriage.

Form 86 out of time

7.In accordance with Order 53, rule 3, the applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review.  This was dated 22 November 2017.  Under Order 53, rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose.  Where the relief sought is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision.  In this case time ran from 21 June 2017 and expired on 21 September 2017.

8.It is incumbent upon the applicant to provide good reason for extending time.  The applicant has submitted no explanation for his delay and has not sought leave for an extension of time.  I have nevertheless considered the principles^[1] applicable to granting such an extension if an application had been made and those are:

1)     the length of delay;

2)     the reasons for delay;

3)     the prospects of success in the intended appeal; and

4)     the prejudice to the putative respondent and administration of justice if extension of time were granted.

9.In this case, the applicant was late by two months and one day and has not offered any explanation for this delay.  In view of the absence of good reason (or indeed any reason) for the delay in filing his Form 86, he must satisfy the court that there is a reasonable prospect of success in his intended leave application and that there will be no prejudice to the putative respondent or administration of justice if an extension of time were to be granted.  As to the latter, there is no suggestion there would be any such prejudice, save that it is in the interest of justice for matters subject to judicial review to be dealt with expeditiously.  This application therefore turns upon the likelihood of success of his application for judicial review.

10.Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status.  As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, 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.  It can therefore only be an application to apply for leave to judicially review the Decision of the Adjudicator.  The applicant must therefore show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain an extension of time to seek leave to judicially review that Decision.

11.All of the papers considered by the Director, were before the Adjudicator.  There were a considerable number of them.  He arranged for an oral hearing at which the applicant was legally represented and had an interpreter.  The applicant relied upon the papers before the TCAB and gave evidence.  He outlined the abuse he received within the police station but did not describe the actual injuries received.  Despite his father having been a life-long member of SES and the applicant becoming a member of SES, his knowledge of the organisation was scant.  He was not considered a credible witness.  In any event, the Adjudicator considered the relevant COI and the facts of the claim but the applicant had not satisfied the burden of proof placed upon him for the reasons given which were reasonable and arrived at after a fair hearing.

Conclusion

12.In the absence of any reason for the delay and any grounds of review, the court is left with the bare facts as relied upon by the applicant and the application of the law to those facts by the Adjudicator along with the explanation given by him within the Decision.  Having analysed that Decision, the applicant’s claim is not credible and was rejected on that basis after due process.  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 an extension of time to apply for leave to judicially review that Decision.

13.This application is refused.

Dated the 7^th day of August 2020.

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