RE SAQIB MEHMOOD

HCAL 1429/2018

[2019] HKCFI 1576

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1429 OF 2018

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D E C I S I O N

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BACKGROUND

This application

1.  This is the applicant’s application for leave to appeal against the interlocutory order dated 27 February 2019 by which I refused to grant him extension of time for his application for leave to apply for judicial review of the decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

2.  This application arose out of the following proceedings.

Application for leave to apply for judicial review of the Board’s Decision

3.  The applicant took out an application for leave to apply for judicial review against the decisions of the Adjudicator of the Board and the Director of Immigration (“the Director”).

4.  The applicant is a Pakistani national. On 2 December 2008, he was arrested by police for illegal remaining in Hong Kong and was referred to the Immigration Department for investigation. On 6 December 2008, he raised a non‑refoulement claim with the Director.

5.  He claimed that if he was to be returned to Pakistan, he would be harmed or killed by the family of his paternal uncle Abdul Razaq and Muhammad Fiaz and Abdul’s son Tariq Mehmood because his father refused to transfer his land to them.

6.  In his statements given to the Director and the Board, he said that his uncle wanted to obtain his share of the ancestral property as the value of the land escalated. As a result of the disputes, his two brothers were killed and his father had died of heart attack too. He had once reported his brothers’ death to police. But the police took no action.

7.  By Notice of Decision dated 10 June 2015 (“the Director’s Decision”) the Director considered his claim under Torture risk, BOR 3 risk and Persecution risk under RC and by Notice of Further Decision dated 16 June 2017 (“the Director’s Further Decision”), the Director considered his claim under BOR 2 risk. The Director’s Decision and Further Decision are collectively called “the Director’s Decisions”. The Director refused his application for the reason that his non-refoulement claim was not substantiated.

8.  The applicant appealed against the Director’s Decision to the Board. He attended a hearing before the Adjudicator on 26 October 2016.

9.  By Decision dated 3 April 2017 (“the Board’s Decision”), the Board refused his appeal in relation to the Director’s Decision on Torture risk, BOR 3 risk and Persecution risk under RC.

10.  The applicant was out of time to appeal against the Director’s Further Decision on BOR 2 risk. He applied for leave for the appeal out of time to the Board. His application was considered by the same Adjudicator.

11.  The Adjudicator was not satisfied with the applicant’s reason that he did not receive the Director’s letter inviting him to submit additional facts for BOR 2 risk claim.

12.  The Adjudicator considered that the applicant’s additional facts as contained in the grounds of appeal in the Notice of Appeal were a re-hashing of the evidence in the hearing before himself on 26 October 2016. He decided that with such evidence, if BOR 2 risk was considered in the same hearing, the applicant would still fail.

13.  The Adjudicator therefore decided that he would not give leave to the applicant for his appeal out of time in relation to the Director’s Further Decision. See §12, 15, 20 and 22 of the Board’s Further Decision dated 13 July 2018 (“the Board’s Further Decision”).

14.  By Form 86 dated 20 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decisions and the Board’s Further Decision on BOR 2 risk. He did not ask for time extension for leave to apply for judicial review of the Board’s Decision.

15.  From the contents of his Form 86 and his affirmation in support of his application, it seemed to me that he should have asked for leave to apply for judicial review of the Board’s Decision as well.

16.  For the sake of convenience, I treated his application for extension of time for leave to apply for judicial review of the Board’s Decision as well.

17.  Having considered the merits of the applicant’s case, I found that he did not have a reasonable prospect of success in his intended judicial review application. On this basis, I refused to grant him the extension of time for his application for leave for judicial review of the Board’s Decision.

DISCUSSION

18.  The applicant has filed an affirmation in support of his application. In this affirmation, the applicant has not set out any reasons to show that this Court had committed any mistake in assessing the merit of his case.

19.  I therefore find that the applicant has no reasonable prospect in his intended application for leave to apply for judicial review of the Board’s Decision.

CONCLUSION

20.  Accordingly, I refuse to grant him leave to appeal against my interlocutory order dated 27 February 2019 to the Court of Appeal.