MOHAMMED WAZED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2981/2019

[2025] HKCFI 1399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2981 of 2019

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 oral submissions by the Applicant in open court;

1.  Extension of time to file the application for leave to apply for Judicial Review (“Form 86”) be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 10 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 3 September 2018 (the “1^st Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his two Notice of Decision dated 27 January 2015 and 5 December 2016 (collectively, the “Notices”), refusing his application for non-refoulement protection under all four applicable grounds under the Unified Screening Mechanism (the “USM”), ie Torture Risk^[1]; BOR 3 Risk^[2]; and Persecution Risk^[3] grounds.

2.  The Applicant is an Indian national, now aged 34.  He visited Hong Kong six times in 2013 and overstayed on his last visit.  He was arrested for overstaying on 27 December 2013.  He then made a claim for non-refoulement protection under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which was later converted into a claim under the Unified Screening Mechanism (the “USM”).  The USM claim was assessed on all four applicable grounds under the USM and rejected by the Director’s two Notices.  His appeals against the Notices were dismissed by the Board’s Decision dated 3 September 2018.  On 10 October 2019, he applied for leave to apply for judicial review of the Board’s Decision. 

3.  In short, his claim is that, if returned to India, he will be killed by Hakim for being unable to repay a loan owing to Hikim.  He said that in January 2013 he borrowed one million rupees for the purpose of his business from Hakim who was the president of the All India Trinamool Congress Party (“AITC”) which was the ruling party in the West Bengal State.  Hakim is a very powerful and influential person with good connections with the authorities.  One day, a consignment of sports shoes the Applicant bought from Thailand was seized by the customs authorities in India because he refused to pay a bribe of 700,000 rupees demanded by the customs officers.  When Hakim learned about the seizure, he gave the Applicant a deadline to repay.  The Applicant was unable to repay. He was assaulted by Hakim and his men in late February or early March 2013. The assault was followed by a shooting incident, but the bullet missed him because of the rain.  He was also informed by his friend that there were strangers loitering around his friend’s home where he was hiding and asking for his whereabouts.  He suspected those men were sent by Hakim to harm or kill him.  Thus, he fled to Hong Kong.

The delay in taking out the leave application

4.  The leave application was filed one year and seven days after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged nine months and seven days out of time.  Extension of time to apply is required.

5.  In AW and Director of Immigration and William Lam[4], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative.  If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two.  Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.  However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[5], per Litton PJ.  The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

6.  Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided neither.  At the hearing, the Court explored the reasons for the delay with the Applicant.  His initial explanation is that he is forgetful and sometimes he forgets and then remembers all of a sudden after a few months.  It seems to be his case that he had received the Decision in the ordinary course but forgot to do anything about it.

7.  When asked how long after the date of the Decision did he receive the Decision, he said he did not receive it on time.  It was six or seven months later that he received it and then he forgot about it.

8.  When asked to give an explanation why a letter sent to him six or seven months ago could have been received by him six or seven months later, he put the blame on his fears and worries about Hakim looking for him and his parents informing him that Hakim was destroying his house.  He also put the blame on his lack of education.  These responses did not answer the question.

9.  When asked again, he said he had changed his address without reporting the change to the Immigration Department.  He said he lived in a particular address in Yaumatei when he filed his Notice of Appeal with the Board (which was 10 February 2015), but moved to another address also in Yaumatei at the time of the Decision (which was 3 September 2018).  When asked why the Decision which was sent to his earlier address could have been received by him at his later address, he explained that he went back to his earlier address every now and then for collecting his mails.

10.  The Court has great reservation on this explanation.  If the Applicant checked his mails regularly as he claimed, he would have received the Decision one or two months after the date of the Decision.  If he checked every six or seven months, such checking cannot be called “regularly”.  The likelihood is that he never checked.  It is more likely than not that this explanation is that it is just another false story.  But, even if this explanation is true (which this Court does not accept), it could not be a reasonable one because he had not informed the Board of his change of address.  It was held by the Court of Appeal in Karamjit Singh[6]:

“14. …As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346.”

Obviously, the delay was caused by the Applicant’s failure to update the Board with his address.  The Applicant only has himself to blame.  He has to bear the consequence of the very substantive delay.

11.  The Applicant’s explanations are bare assertions unsupported by any credible reason or evidence.  He has failed to give a reasonable explanation for the delay.  This is a case to which the principle in Po Fun Chan v Winnie Cheung applies.  His delay evinced a lack of intention to prosecute his leave application.  It also reflects a lack of underlying merits in his leave application and non-refoulement claim and an absence of a genuine fear of harm from any of the proscribed risks.  His conduct resulted in delay in the processing of his leave application and his refoulement process.  His conduct is a clear abuse of legal process.  The delay is so inordinate as to be beyond the limit which any court could indulge.  For these reasons, there is no need to consider the merits of his leave application.  Extension of time to file the leave application is refused.  Having perused the Decisions and the papers, this Court can detect no errors of law, procedural unfairness or irrationality in the Decision. Hence, his leave application is also refused.

Conclusion

12.  For the above reasons, extension of time to apply for leave to apply for judicial review and the leave application are refused.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] CACV 63/2015 (unreported) 3 November 2015

[5] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[6] CACV 78/2018