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

HCAL 2395/2018

[2020] HKCFI 1574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2395 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.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 (“RHC”), 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 on 6 September 2019. I shall therefore deal with his application on paper.

The applicant

2.The applicant is a national of Pakistan. He came to Hong Kong on 22 July 2009 illegally from China. On 13 October 2009, he was arrested. On 15 October 2009, he lodged a torture claim.

3.He claimed that if refouled, he would be harmed by his distant relative, Mr. Shariff as he wanted to take possession of a piece of land, which he inherited from his late father.

4.The piece of land in question was registered in his father’s name at the Land Registry. Despite this, Shariff refused to accept and insisted that he should have the piece of land. He together with his sons had come to the applicant’s house where they attacked the applicant and his brothers. They sustained injuries and had to receive medical treatment at the hospital. There were altogether four incidents of such attack, with or without weapons. The applicant reported the matters to police, which advised him to surrender the land to Shariff. In the final incident before he came to Hong Kong, he was detained by police for two hours and was released after his family had paid the bribe. He moved to live in his maternal uncle’s house for 8 months. Feeling afraid, he came to Hong Kong.

The Director’s Decisions

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

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

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”).

6.By Notice of Decision dated 15 July 2014 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

7.By another letter dated 20 September 2016, the Director invited the applicant to submit additional facts on all applicable grounds for non-refoulement protection, including 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”), telling the applicant that a further written decision of his non-refoulement claim would be made. However, the applicant did not submit any additional information to the Director.

8.By Notice of Further Decision dated 25 October 2016 (“the Director’s Further Decision”), the Director rejected the applicant’s claim, including the BOR 2 risk.

9.The Director’s Decision and the Director’s Further Decision are collectively called (“the Director’s Decisions”).

The Board’s Decisions

10.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 3 October 2014.

11.By Decision dated 17 December 2014 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

12.The Board considered the applicant’s evidence. It found that the applicant failed to establish that if repatriated to Pakistan, he would be exposed to the risks as claimed [44]. It came to this conclusion on the reasons below.

a.The applicant refused to give evidence or to answer questions [4].

b.The applicant failed to establish that Shariff, who having obtained the land, was still interested in him [10].

c.There was no evidence that the government was involved [11].

d.Internal relocation was an option open to him [18].

e.There was no evidence of BOR 3 risk [27].

f.  There was no evidence of persecution risk [32].

g.His claims were not creditable because he had not raised any torture claim when he first arrived in Hong Kong, the Board relying upon section 37ZD(1)( c) of the Ordinance.

h.There were no answers to the queries which the Board intended to raise [43].

13.On 23 February 2017, the applicant filed an appeal against the Director’s Further Decision to the Board. The Board found that this appeal was out of time for three and a half months. It decided that it would not extend time for the applicant to file his Notice of Appeal and held that the appeal was a nullity and the Board had no jurisdiction to consider the appeal. However, in the Addendum, the Board said that it examined the applicant’s alleged story to see if there was any merit in the appeal. Having reviewed the evidence of the case, the Board held that there was no merit in the applicant’s appeal.

14.By Decision dated 5 October 2018 (“the Board’s Further Decision”), the Board refused to extend time for the applicant to appeal the Director’s Further Decision, holding that the applicant’s appeal was a nullity. In practical terms, the Adjudicator dismissed the appeal as he confirmed the Director’s Further Decision.

Application for leave to apply for judicial review

15.The applicant filed Form 86 dated 29 October 2018 for leave to apply for judicial review of the Board’s Further Decision. He did not apply for leave to apply for judicial review of the Board’s Decision dated 17 December 2014.

16.He did not set out any reasons in his affirmation in support of his application.

DISCUSSION

17.The applicant’s application in respect of the Board’s Further Decision is within time under Order 53, rule 3 of the Rules of the High Court.

18.Although the applicant did not seek leave to apply for leave to apply for judicial review of the Board’s Decision for the reason that there has been a long lapse of time, I decide to take into consideration of the Board’s Decision as well for this application. I shall set out my reasons below.

(1)     The Director had written to the applicant inviting him to supply additional information for the assessment of the BOR 2 risk. In the letter, the Director clearly stated that he would assess the applicant’s claim, including BOR 2 risk.

(2)     Following from the above, it seems clear that the Director had not finalized his decision as to whether he would accept the applicant’s claim for non‑refoulement in the Director’s Decision. This is logical because the Director could not finalize his decision before having considered BOR 2 as well. The applicant would succeed if he could establish any one of the risks claimed.

(3)     This Court cannot merely consider the Board’s Further Decision without at the same time considering all the facts in the Board’s Decision.

(4)     For better case management, this would obviate the possibility that the applicant might apply to this Court for extension of time for leave to apply for judicial review of the Board’s Decision after it has made its decision on the Board’s Further Decision.

19.In the Board’s Decision, the Board had set out the reasons for the findings of the facts. See paragraph 12 above. Since the applicant elected not to give evidence, the Board was entitled to reach conclusions on those facts.

20.The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

21.Though the Board refused to extend time for the applicant’s appeal of the Director’s Further Decision, however, the Board had considered the merits of the applicant’s case. This is in compliance with the requirement of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, in which the Court of Appeal held that the Board has to consider the merits of the case even if the applicant is late or absent for the hearing. The Board held that the applicant’s claim had no merit in relation to BOR 2 risk [14].

22.The Board was right to reach that conclusion, given that there was no additional information from the applicant for its consideration.

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

CONCLUSION

24.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 16^th day of July 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