ULFAT RASOOL BUTT v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1919/2018

[2020] HKCFI 1393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1919 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

(1)  Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 28 March 2018 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 28 March 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), which confirmed the Director’s decision refusing his application to re-open his application that he had withdrawn.

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 by adding the Board as proposed respondent and adding the Director of Immigration (the “Director”) as interested party.

The applicant

4.  The applicant is a Pakistani national.  He came to Hong Kong illegally.  By written representation dated 19 June 2007, he applied for a torture claim on the basis that his life would be in danger if he returned to Pakistan.  In the written representation, he claimed that he was a member of MSF party and that he had fought several times with the members of the opposition party, Anjuman-e-Talba Islam (“ATI”).  They were after him and wanted to kill him.

The applicant applied to withdraw his application

5.  Before his application was determined by the Director, he applied to withdraw his application by a letter dated 15 April 2013.

6.  By a letter dated 23 April 2013, the Director informed him that no further action would be taken on his claim.

7.  By another letter dated 22 September 2017, some over four years after he withdrew his application, he applied to the Director for re-opening his case.

8.  By reference to section 37ZE (1) of the Immigration Ordinance (“the Ordinance”), by letter dated 4 October 2017, the Director informed the applicant that he should provide sufficient evidence in writing to satisfy the immigration officer that:

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

(i)  could not reasonably have been foreseen by him when he gave the withdrawal notification; and

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

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

9.  By two letters respectively dated 13 October 2017 and 15 October 2017 (“the said letters”), the applicant claimed that he was a member of Muslim Student Federation (“MSF”) when he was a student in Pakistan.  His job was to help the poor students to pay their fee and promote education.  The rival party at that time was ATI, one of the Pakistan Taliban branch. He was asked to stop working for MSF and to help ATI. His life was in danger.  He further said that Pakistan ranked the fourth most unsafe country in the world in 2017 and quoted some adverse incidents that had happened in Pakistan in 2013 and 2016, without mentioning any relevancy to his claim.

The Director’s Decision

10.  The Director considered his application for re-opening his torture claim.

11.  The Director took into consideration of his letter dated 15 April 2013, in which he stated that he was serving his imprisonment for a drug case and his release would be in December 2017.  He was unable to continue with the interviews as he was upset.  He therefore withdrew his torture claim.  In the said letters, he reiterated that he was depressed and mentally upset at the time of withdrawal due to his 12-year prison sentence.

12.  Having considered his statement to the Immigration officer for his claim and the said letters, the Director was of the view that since his withdrawal of his application, there had not been any change of circumstances that could not reasonably have been foreseen by him when he gave the withdrawal notification and when taken together with the material previously submitted by him for his claim, could increase the prospect of success of his claim.  Also, he was unable to provide sufficient evidence in writing that by reason of special circumstances, it would be unjust not to re-open his claim.

13.  By Notice Decision dated 1 November 2017 (“the Director’s Decision”), the Director refused his application for re-opening his claim.

The Board’s Decision

14.  The applicant appealed to the Board against the Director’s Decision. In his Notice of Appeal, he repeated the same facts that he had submitted to the Director.  He added information which he had not mentioned in the previous screening information.  He stated that, in April 2004, the President of the MSF in his college had been attacked and killed.  He also stated that, in November 2005, he himself had been kidnapped and held for about one month, during which time he was physically ill-treated.

15.  Having considered the evidence before it and for the reasons set out in its Decision, the Board concluded that he failed to establish that there had been a change of circumstances, which he could not have reasonably foreseen; that he failed to establish that the added information, together with the existing evidence would increase the prospect of success of the claim and that he failed to establish any special circumstances by reason of which it would be unjust not to allow him to re-open his torture claim.  See §§16-24.

16.  The Board rejected his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

17.  The applicant filed Form 86 on 13 September 2018 for leave to apply for judicial review of the Board’s Decision.

18.  In his affirmation in support of his application, he said that he could not go back to his country because he had problems there.

DISCUSSION

19.  The applicant’s application is late for about five and a half months, the Board’s Decision being 28 March 2018 and Form 86 was filed on 13 September 2018.

20.  The Court of Appeal in AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015 held that where there is an application to the court for extension of time for judicial review, the court has to take into consideration: (i) the length of the delay; (ii) explanation for the delay; (iii) merits of the substantive application; (iv) prejudice and (v) questions of general public importance [27(3)].

21.  Whether the applicant has fulfilled the conditions under section 37ZE(1) of the Ordinance is a finding of the facts by the Director and the Board.

22.  The Director and the Board had given their reasons for rejecting the applicant’s application for re-opening his claim.

23.  The ground given by the applicant does not assist his application.

24.  There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case or that the Board was unreasonable to have come to its conclusion.

25.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

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

FRUTHER DIRECTIONS

27.  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.

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