Case Document

100%Judiciary

HCAL 2423/2018

[2020] HKCFI 876

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2423 of 2018

BETWEEN

	Baig Azmat	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 Applicant being absent 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 15 March 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 of the Decision dated 15 March 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), which confirmed the Director’s decision dated 14 June 2016 (“the Director’s Decision”) not to re-open the applicant’s non‑refoulement claim, which was withdrawn upon his notice in writing dated 27 August 2015.

2.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 CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“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 there are any further grounds in support of the application. In response to the Court’s invitation, the applicant did not attend the hearing on 22 November 2019. I shall proceed to consider his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), Form 86 was amended by deleting Director of Immigration in the column for respondent to be replaced by the Torture Claims Appeal Board (the “Board”).

The applicant

4.The applicant is a national of Pakistan. He was an illegal immigrant. On 16 September 2008, he was arrested by police. On 20 September 2008, he raised torture claim application.

The Director’s Decisions

5.He applied for withdrawal of his claim and also for re-opening of his claim subsequently.

6.By letter dated 9 March 2012 from his duty lawyer, he applied to withdraw his torture claim application and his application was therefore treated as withdrawn.

7.On 21 February 2013, the Director received the applicant’s written request dated 18 February 2013 to re-open his torture claim, stating his reason that at that time his mother was seriously ill. After a few months, his mother recovered and advised him not to return to Pakistan. As requested, he further provided other reasons to the Director in support of his application. He said that his younger brother was kidnapped because of the fact that the applicant witnessed the murder done by the senior members and official leaders of the Muslim League (N). His mother was very scared and his family always moved their places of living.

8.By letter dated 30 April 2013, the Director refused his application to re-open his torture claim.

9.By letter dated 5 May 2014 and an undated letter, the applicant lodged his claim on Cruel, Inhuman or Degrading Treatment or Punishment. In support of this application, the applicant said that he witnessed the murder. The victim’s family wanted him to be the witness in police station against the murderers. He had given statement to police, who passed the information to the murderers. They had attacked him twice. He had to move to Karachi. His friend who knew his whereabouts was shot dead. So he left his country.

10.By letter dated 22 June 2015, the Director informed him that his application would be considered on all the applicable grounds other than torture risk under the Unified Screening Mechanism.

11.By letter dated 27 August 2015, the applicant sent a notice to the Director to withdraw his non-refoulement claim.

12.By letter dated 1 September 2015, the Director informed the applicant that his application was withdrawn and no further action would be taken on his non-refoulement claim.

13.By letter dated 26 May 2016, the applicant applied to the Director to re-open his non‑refoulement claim. He said that he withdrew his application previously because his family in Pakistan told him that they might be able to solve the problems for him. But a few weeks later, his family told him that they were unable to solve his problems in Pakistan.

14.By letter dated 5 June 2016, the applicant further explained that his mother was misled to believe that the problem could be solved in Pakistan. In fact, it was a trap. He had clarified with his cousin in Pakistan, who told him that his mother was misguided and if he returned to Pakistan, he would be killed. That is why he applied to reopen his application.

15.By his Decision, the Director refused his application for re-opening his withdrawn application, stating that the applicant had failed to provide the immigration officer with evidence in writing to show that there had been a change of circumstances, which taken together with the materials previously submitted, could increase the prospect of success of his claim. He appealed this decision to the Board.

The Board’s Decision

16.According to the Board’s Decision, there was no record of any hearing, in which the applicant appeared before the Adjudicator.

17.The Board considered section 37ZE(2) of the Ordinance:

(2)      Subject to section 37ZF(3), a torture claim that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that—

(a) since the withdrawal, there has been a change of circumstances that—

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii)     when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b)     by reason of special circumstances, it would be unjust not to re-open the claim.

18.The Board made the findings as follows:

“16. Having carefully considered all the relevant issues in this petition, the NCPO [Non-refoulement Claims Petition Office] declines to allow the Petitioner to re-open his non-refoulement claim. The Petitioner has failed to show any change of circumstances that could not reasonably have been foreseen when he gave notice withdrawing his claim; and when taken together with material previously submitted for the claim, there was nothing new that could increase the prospect of success of his claim; or there were any circumstances that would be unjust not to allow him to re-open his claim. The NCPO finds that a bare assertion by the Petitioner that he had been informed, through the help of an outside friend, on the telephone by a family member or members, or by his cousin who was his childhood friend that his life would be at risk if he returned to Pakistan, does not constitute special circumstances by virtue of which it would be unjust not to re-open his claim.”

Application for leave to apply for judicial review

19.The applicant filed Form 86 on 31 October 2018 for leave to apply for judicial review of the Board’s Decision.

20.His application is late as the Board’s Decision is dated 15 March 2017. I will consider the merits of his case in order to determine whether time should be extended for him to proceed with this application. Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419.

21.He did not set out any reasons in his affirmation to show where the Board’s Decision was wrong other than saying that the Board’s decision was unfair and unreasonable.

DISCUSSION

22.The burden is on the applicant to show to the Board evidence that substantiates his claim. Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §51. The Board found that he had failed to do so.

23.It is also the applicant’s burden to show to this Court why he considers that the Board’s Decision is unfair and unreasonable. Re: TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §19.

24.Had the applicant appeared before this Court, he might produce other documentary evidence in support of his fear of being killed if he returned to Pakistan. I would consider his evidence since he did not have a hearing before the Board. However, he had failed to attend the hearing without giving any reason for his absence.

25.I do not find any error on the part of the Board to have to come its decision.

26.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

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

FURTHER DIRECTIONS

28.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 21^st 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 21/5/2020 Baig Azmat 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 21/5/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3970/16/6/160/P1019 Director of Immigration Putative Interested Party’s ref. no.: L/M (13348)in ImmD RA 7/37/C (formerly RBCZ 11994/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)