Case Document

100%Judiciary

HCAL 2854/2018

[2020] HKCFI 1903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2854 of 2018

BETWEEN

	Sohail Muhammad Farhan	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 9 May 2018 be refused; and

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

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 9 May 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board as proposed respondent and the Director of Immigration (the “Director”) as interested party.

The applicant

4.The applicant is a Pakistani national. He came to Hong Kong illegally on 23 July 2009 and was arrested by police. He lodged his non-refoulement claim by written representation dated 27 February 2014.

5.He claimed that if refouled, he would be harmed or killed by his paternal uncle and his sons. His uncle and his sons had used violence upon him and they drew out a pistol and shot at him. For details see paragraph 28 of the Board’s Decision.

The Director’s Decision

6.The applicant had applied for torture claim and he was rejected by the Director. He did not appeal against the Director’s decision. The Director considered his application in relation to the following risks:

a.     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”);

b.     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

c.     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”).

7.By Notice of Decision dated 17 August 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of harm by his enemies if he returned to his country was low [64]; that state protection would be available to him [73] and internal relocation was an option open to him [96].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons that his was not a credible witness [78]; that it did not accept that he had been targeted and harmed in the past by his uncle and his uncle’s family or supporters [94]. In a nutshell, the Board did not accept the facts he alleged in support of his claim.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 12 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he stated that the Board’s Decision was unfair. If he went back to Pakistan, his life would be in danger.

DISCUSSION

12.The applicant’s application is late. This Court has to consider the merits of his application to determine whether time should be extended for him to file his application for leave to apply for judicial review. AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §§27 & 35

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

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

Dated the 10^th day of August 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 10/8/2020 Sohail Muhammad Farhan 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 10/8/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8310/17/8/348/P1638 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1446/17 (formerly RBCZ 2002719/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)