RASHEED USMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1096/2017

[2018] HKCFI 1858

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1096 of 2017

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

Following;

	consideration of the documents only;     or
	consideration of the documents and the Applicant being present/absent in open court;

Leave for extension of time be refused.

Observations for the Applicant:

Procedural history

1.  The Applicant entered Hong Kong illegally on 5 December 2012, from China by boat and was arrested by the police on 6 December.  He was transferred to the Immigration Department on 7 December and released upon recognisance on 7 February 2013.  The Applicant submitted a torture claim only, by way of written representation, on 8 December 2012 and the claim form on 14 February 2013.  Pursuant to that claim, the Applicant attended screening interviews on both 14 May and 17 June 2013.  The Director of Immigration (“the Director”) dismissed his torture claim by Notice of Decision (“the 1^st Decision”) on 31 July 2013.  The Applicant has not appealed this decision.

2.  By a letter of 8 August 2013, the Duty Lawyer Service (“DLS”) informed the Director that the Applicant reserved his right to claim protection and non-refoulement under Article 3 of the BOR for CIDTP.  No such claim was subsequently made.

3.  On 10 February 2014, the Applicant was informed that his non-refoulement claim would be processed on applicable grounds under the United Screening Mechanism (“USM”).  On 16 October 2015, the Applicant withdrew that claim.  On 22 December 2015, the Applicant sought to re-open his claim and was required by letter of 30 December 2015, to provide the appropriate information to satisfy the statutory requirements for re-opening such claim.  A very short response was provided by letter dated 4 January 2016.  The Director refused his application on 19 February 2016 (“the 2^nd Decision”). The Applicant appealed the Director’s refusal to reopen the claim, to the Torture Claims Appeal Board (“the TCAB”).  The Adjudicator of the TCAB, Mr Gerard Muttrie, considered that appeal on the papers and refused his appeal on 22 May 2017.

4.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review of the Director’s and TCAB’s Decisions on 18 December 2017 (just short of five months later) and did not request an oral hearing.  The application is out of time.  The matter was considered on the papers.

Background

5.  The Applicant is a Pakistani national.  He was born on 12 February 1991 in the Punjab and is a Shia Muslim.  The Applicant’s father and brother were members of the Pakistan Muslim League.  Whilst the Applicant was still young, he was led to believe by his mother that his father had been killed by members of the opposition party, the Pakistan Peoples Party although there is no concrete evidence to support this.  In 2008, the Applicant’s brother was arrested for murder and has been detained for the past five years pending trial.  At the same time, the Applicant had been attacked with stones by a group of males from another religious sect and had been treated for his injuries at home.  This was not reported to the police.  In 2008, the Applicant therefore moved away from his home area and thereafter lived with relatives whilst working for a short period as a machine operator.  His family was the subject of a further attack by the same religious group in 2009, when bullets were fired at his mother’s house and another in 2011, when he was attacked with hockey sticks and punched.  This caused him to become unconscious.  On this occasion he was treated by a doctor at home and took three to four weeks to recover.  His mother did attempt to report the attack to the police but they did not assist.  The Applicant had no difficulties with the police personally before he moved away from home and none since he moved away.  The Applicant decided to leave Pakistan in November 2012 and went to China first, then sneaked into Hong Kong by boat.

Merits of claim

6.  There were three incidents in all arising in 2008 and 2009, some 10 years ago.  The Applicant has no political affiliation himself and the first attack suggests a religious tension and not a political one, in which he received only minor injuries.  The subsequent attack on the Applicant’s home resulted in no injury and appeared to be aimed to scare his family and does not appear to have any connection to the third attack with hockey sticks, when the Applicant was injured and took some time to recover.  Nevertheless, these were low level and infrequent attacks with no suggestion of any direct state involvement and minimal links to religious tension.  They were restricted to the Applicant’s home village and he encountered no such difficulties in the ensuing months when he had moved away from home.

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 18 December 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 sort 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 22 May 2017.  The Notice of Decision was sent to the Applicant’s registered address; the same address he relies upon for these proceedings.  The Applicant has submitted no explanation for his delay and has not sought leave for an extension of time.  I have never the less considered the principles applicable to granting such an extension as 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 if extension of time were granted: Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015).

8.  In this case, the Applicant was late by 118 days and has not offered any explanation for this delay.  In view of that, he must satisfy the court that there is nevertheless a real prospect of success in his intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted.  Whilst it is likely that the latter will not be prejudiced, there has been no reason given at all before the court as to why an extension of time for leave to apply for judicial review should be given.  The merits of the Applicant’s claim as explained above are not reasonably arguable and he does not have a realistic prospect of success.  Accordingly, this application is dismissed as being out of time.

9.  Where the Applicant intends to appeal this refusal to grant leave to extend time, he must appeal this decision to the Judge against whose order his appeal is sought, within 14 days of the date of this order, in accordance with section 14AA of the High Court Ordinance, Cap 4 and Order 59 rule 2B, the Rules of the 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

Form CALL-1