Ali Munsif and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1627/2018

[2020] HKCFI 72

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1627 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

Order by Deputy High Court Judge K.W. Lung:    

(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 16 March 2017 be refused; and

(2) Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1) If the applicants intend 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, they 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 applicants 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 Applicants:

THE APPLICATION

1.The applicants are a family. This is the applicants’ joint ex parte application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

2.The first and the second applicants are husband and wife. The other applicants are their children. They made submissions on behalf of themselves and their children.

3.The applicants are not legally represented and they did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicants to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if the applicants had a fair screening before the Immigration Department and the Board and if there are any further grounds in support of the application. In response to the Court’s letter, the applicants appeared before this Court.

The applicants

4.The applicants are national of Pakistan. The 1^st applicant came to Hong Kong illegally in July 2005. He was arrested by the Immigration Department on 5 January 2006. He was charged and convicted of the offences of illegally remaining in Hong Kong and using an identity card relating to another person. He was sentenced and repatriated on 10 November 2006. On 1 April 2014, husband and wife and the 3^rd applicant attempted to enter Hong Kong through Lo Wu. They were denied permission to enter whereupon they raised non-refoulement claim.

5.The applicants’ claims are based on the same set of facts and have been consolidated. I shall adopt the Board’s approach and refer to the first applicant’s case. He claimed that if refouled, he would be harmed or even killed by the people of the MQM party because his brother Danish has had conflict with them.

6.He claimed that his brother Danish who was a worker for the Sunni Tehreek party (“ST”), a rival party to another party, MQM. Danish was involved in a scuffle with MQM people in July/August 2012. The MQM people shot him dead. The applicant had contacted ST for a revenge. He had also reported the matter to police. However, he was told by his mother that the MQM people were looking for him and would kill him. He tried to avoid them. In a restaurant, he overheard that the MQM people were coming to Punjab to kill him. He was scared and took his family to leave Pakistan for Hong Kong

The Director’s Decisions

7.The Director considered his application in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

8.By Notice of Decision dated 26 June 2015 and another Notice of Further Decision dated 25 October 2016 (collectively called “the Director’s Decisions”), the Director refused their claim for the reason that their claim was unsubstantiated.

The Board

9.The applicants appealed to the Board and they failed to attend the hearing. The Adjudicator was satisfied that due notice had been given to the applicants. The Adjudicator then gave notice to the applicants at their last known address, stating that they might, within 7 days, submit a written explanation to the Board giving their reasons for their absence. This was done in compliance with section 15 (1) and (2) of Schedule 1A of the Ordinance.

10.No written explanation was received from the applicants. Pursuant to section 15(3) of Schedule 1A of the Ordinance, the Adjudicator proceeded to determine the appeals in their absence.

11.By Decision dated 16 March 2017 (“the Board’s Decision”), the Board rejected their appeal and confirmed the Director’s Decisions.

12.The Board considered the applicants’ cases and what follow are the reasons for the Board’s refusal of the applicants’ appeals.

(1) None of the applicants were tortured [11]; the State was not involved in this case [12] and therefore the claim on Torture risk failed [16].

(2) Internal relocation is an option open to the applicants [21].

(3) The facts did not support BOR 3 risk [26].

(4) BOR 2 risk obviously failed [28].

(5) Persecution risk also fails [32].

Application for leave to apply for Judicial Review

13.In their Form 86, the applicants jointly applied for leave to apply for judicial review of the Board’s Decision. However, their application dated 13 August 2018 was more than 16 months after the Board’s Decision. It is therefore late. In Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018), the Court of Appeal held that this Court has to consider the merits of the applicants’ cases. I will, therefore, have to consider whether time should be extended to them for their application.

14.In the affirmation of the 1^st Applicant in support of their application, the 1^st applicant simply said:

“I would like to [ illegible] and review the decision made by the Torture Claims Appeal Board on my and my family’s non-refoulement claims on 16/3/2018. They disregard our dangerous situation.”

DISCUSSION

The Director’s Decisions

15.In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

16.The applicant has not set out any exceptional circumstances.

17.Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

18.The applicants’ application for leave to apply for judicial review of the Director’s Decisions therefore fails in limine. I dismiss their application.

The Board’s Decision

19.The applicants appeared before me. The 1^st applicant confirmed that they had had a fair interview with the Immigration officer and their lawyer had explained the Director’s Decisions to them. They did not appear before the Board because they had changed address without informing the Immigration Department. Therefore, they did not receive the Hearing Notice from the Board.

20.No doubt, they have the obligation to update the Immigration Department their address from time to time. If they failed to do so, they have to take the consequences themselves.

21.The Board was entitled to consider the applicants’ appeals on the paper since they did not appear at the hearing. Having considered the merits of their cases, the Board was entitled to confirm or reverse the Director’s Decisions. See section 23 (1) of Schedule 1A of the Ordinance.

22.The Board had considered the merits of the applicants’ cases and the Adjudicator had come to his conclusion he was entitled to. There is nothing amiss in his analysis of the applicants’ cases. The applicants do not have any reasonable prospect of success in their intended judicial review.

CONCLUSION

23.For the above reasons, I refuse to extent time for the applicants to make their application for leave to apply for the intended judicial review. Accordingly, I dismiss their application.

24.It is further directed that:

1. If the applicants intend 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, they 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 applicants 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 respondents 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.

Dated the 3^rd day of January 2020

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