Raja Ibrar Hussain v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1753/2018

[2020] HKCFI 1111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1753 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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 17 August 2018 of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office. I shall call this Decision (“the Board’s Further Decision”) as the Board had also made another decision dated 17 February 2017 (“the Board’s Decision”) which the applicant does not seek application for leave for judicial review.

2.The applicant is not legally represented and he 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 applicant 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 there are any further grounds in support of the application. In response to the Court’s invitation, the applicant did not attend the hearing of 16 October 2019 without any explanation. This Court will consider his application on the papers.

The applicant

3.The applicant is a Pakistani national. He came to Hong Kong on 21 March 2008 illegally through China. He was arrested by police on 14 January 2009 and was referred to the Immigration Department. He lodged a non-refoulement claim on 22 November 2013. Before this application, he had made a torture claim on 16 January 2009 and was rejected. He had appealed to the Board, which refused his appeal on 9 May 2014. In December 2014, he was arrested for offences and was convicted and sentenced to 15 months’ imprisonment. He was released from prison on 13 November 2015.

4.He claimed that if refouled, he would be harmed or killed by his paternal uncles Haji Bashir and Mohammad Shabir who had grudges against him regarding land dispute between him and them.

5.The incidents leading to him leaving his country took place as set out below.

a.     His father passed away and left him a piece of land. He sold part of the land for 900,000 Rupees.

b.     His paternal uncles demanded to share half of the proceeds. He disagreed.

c.     His paternal uncles pursued their demand by force. They beat him up with fists and sticks. One of them even pulled a gun and shot at him when he escaped.

d.     He had attempted to move to various place in order to avoid them

The Director’s Decisions

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

a.     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”);

b.     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

c.     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”).

7.By the Director’s Decision dated 7 January 2016, the Director refused his claim on BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director took the view that his alleged level of risks was low [17]; state protection would be available to him [22] and relocation was an open option to him [26]. By the Director’s Further Decision dated 13 April 2017, the Director rejected his claim on BOR 2 risk too.

The Board’s Decisions

8.The applicant appealed to the Board against the Director’s Decision on 14 January 2016. The Board, having considered the relevant statutory provisions and the authorities, decided that it could determine the appeal without a hearing because it considered that it was not necessary to clarify the facts with the applicant.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence and was of the view that the applicant’s case could not meet the minimum level of severity and it rejected that he had a substantial risk of being subjected to ill-treatment [44 &45]; state protection would be available to him [42] and internal relocation was an option open to him [52].

11.He also appealed against the Director’s Further Decision. The Board found that he was out of time for five and a half months. The Board took the view that it had no power to hold a hearing for his application for extension of time according to paragraph 9 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme. He considered the reasons given by the applicant and he did not accept them. He refused to grant extension of time for his appeal. He considered that he did not have to consider the merit of the case. This is obviously not correct as the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, held that where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application. [18] It is incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor. [20] Fortunately, the Board did consider the merits and held that BOR 2 risk did not apply to the applicant’s case. See paragraphs 13 – 14 of the Board’s Further Decision.

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 27 August 2018 for leave to apply for judicial review of the Board’s Further Decision.

13.In his affirmation in support of this application, he did not state that the Board had committed any error in reaching its decisions. He only said that he disagreed with the Board’s Decisions.

DISCUSSION

14.It is obvious that the Board had considered the merits of the applicant’s appeals.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 (CACV 54/2018) at §42 held that the Board’s decision is final, subject to judicial review by the court. However, there is no evidence to show that the Board erred in its finding of the facts or in the application of the laws to the case.

17.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

18.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Dated the 10^th day of June 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