RE FAROOQ MUHAMMAD

CACV 280/2017

[2018] HKCA 183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 280 OF 2017

(ON APPEAL FROM HCAL NO 459 OF 2017)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) dated 4 December 2017 refusing leave to the applicant to apply for judicial review.  By a letter of 12 December 2017, the applicant agreed that the appeal could be heard by two judges.  We heard the appeal on 22 March 2018.  We now hand down our judgment.

BACKGROUND

2.  The applicant claimed to have come from Pakistan to Hong Kong illegally by boat on 29 February 2008. He was arrested on 10 March 2008.  On 4 April 2008, he lodged a torture claim which was later expanded to become a non-refoulement claim.  The claims were based on his assertion that his life was threatened by the brother of his former girlfriend, who disapproved of the applicant’s marriage proposal and attacked the applicant in 2007.

3.  The Director decided against the claims on 28 November 2014.  The decision covered BOR 3 risk, persecution risk and torture risk (“the Director’s First Decision”).  By a further decision of 25 April 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant (“the Director’s Further Decision”).  The applicant then lodged 2 appeals to the Torture Claims Appeal Board in respect of the Director’s Decision and the Director’s Further Decision.  The Board dismissed the appeals on 7 December 2016 and 19 July 2017 (“the Board’s First Decision” and “the Board’s Further Decision” respectively).

THE JUDGE’S JUDGMENT

4.  The intended judicial review was in respect of all the Director’s Decisions and the Board’s Decisions.  The Form 86 filed by the applicant on 27 July 2017 did not state any ground for judicial review.  In his affirmation of 27 July 2017, the applicant relied on the following grounds :

(1) The applicant’s life would be threatened if he were to return to Pakistan; and

(2) The applicant had not received the letter sent by the Director requesting further information on BOR 2 risk.

5.  At the hearing before the Judge on 12 October 2017, the applicant applied to adjourn the oral hearing, which was refused by the Judge.  The applicant then confirmed that he had one ground only, namely, the risk that he would be killed if he went back to Pakistan.

6.  The Judge reviewed the materials and the applicant’s case carefully.  After summarizing the facts and background of the case, she correctly pointed out that it was only open to the applicant to judicially review the Board’s Decisions.  However, the Form 86 was filed six months and three weeks after the Board’s First Decision.  And the applicant had not offered any explanation for the delay.  The Judge held that there was no good reason to extend time for the judicial review against the Board’s First Decision.  She therefore held that the Form 86 could only apply to the Board’s Further Decision.  But she went on to hold that in respect of the Board’s Further Decision, which concerned BOR 2 risk only, the decision by the Board not to hold another oral hearing was fair.  This is because the applicant did not in fact have any further information to provide to the Director to support his claims under BOR 2.

7.  The Judge went on to consider the merits of the applicant’s case and the reasons for the Director and the Board in reaching their Decisions in detail.  For the reasons that she gave, she agreed with the Director and the Board.

DISCUSSION

8.  In the notice of appeal dated 12 December 2017, the applicant relied on the only ground that his life would be in danger if he were to return to Pakistan.  Despite the court’s direction by letter dated 27 December 2017, the applicant had not filed any written submission in support of his appeal.  In his oral submission, he raised three points.  First, he reiterated the threat that he would face if he were to return to Pakistan. Second, he said he was married to an Indonesian lady and they have a daughter. If he is not allowed to stay in Hong Kong, he and his family will go to Indonesia in January 2019.  Third, he has not done anything illegal in Hong Kong.  Because of the last 2 matters, he hoped the court could allow him to stay in Hong Kong at least until January 2019.

9.  Having considered the submissions of the applicant in light of the materials before us, we agreed with the Judge.

10.  Under Order 53 rule 4, of the Rules of the High Court, Cap 4A, judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose.  There was inordinate delay on the applicant’s part in bringing judicial review against the Board’s First Decision.  But he had not provided an explanation for this delay.  The Judge was right to dismiss this part of judicial review on delay alone. 

11.  We further endorse the Judge’s conclusion on the merits of the applicant’s case and the reasons of the Director and the Board in reaching their Decisions.  In particular, we wish to highlight two points. First, the Board had analysed the applicant’s allegations in detail and found him to be “incredible and not a genuine claimant”.  Second, the applicant still has not identified what further information regarding BOR 2 risk he could have provided to the Director.

12.  In the circumstances, we do not see any substance in the applicant’s judicial review.  The Judge was entirely correct in refusing the applicant leave to apply for judicial review.

13.  As to the second and third matters that the applicant sought to rely on, they are simply irrelevant to the intended judicial review and this appeal.

CONCLUSION

14.  For these reasons, we dismiss the appeal.