Case Document

100%Judiciary

HCAL 1923/2018

[2020] HKCFI 1879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1923 of 2018

BETWEEN

	Baig Mirza Noman	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 Applicant being absent in open court;

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 27 April 2018 be refused; and

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

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 27 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant was absent at the hearing. The Court will consider his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Director of Immigration (“the Director”) as proposed respondent and by deleting the Board as interested party.

The applicant

4.The applicant is a Pakistani national. He came to Hong Kong on 11 July 2009 illegally, the same day he was arrested by police. He lodged his non-refoulement claim on 13 July 2009. He claimed that, if refouled, he would be harmed or killed by his paternal uncle, Mirza Shoukat Baig because of a dispute over the ownership of the house.

5.The applicant claimed that his father had inherited two houses. The one in dispute was vacant. In 2008, his paternal uncle came with 5 or 6 gangsters carrying AK47 guns. Uncle Mirza demand possession of the vacant house. His father refused. Uncle Mirza and his gangsters fired to the air to threaten them. They left and returned again shortly after the first attempt. This time, there was a fight and as a result, his father was injured. However, the applicant was not injured at all. In another day when the applicant was on his way to the farm where his father worked, he met uncle Mirza’s men. They fired shots at him. He ran away and was not injured. He moved to stay with his aunt. His father advised him to leave Pakistan. With the help of his friend, he paid an agent to leave Pakistan for China, from where he came to Hong Kong illegally.

The Director’s Decisions

6.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”).

7.By Notice of Decision dated 17 February 2015 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that the level of risk he claimed was low [10]; that state protection would be available to him [14] and that relocation was an option open to him [15].

8.By Notice of Further Decision dated 12 June 2017 (“the Director’s Further Decision”), the Director rejected his claim on BOR 2 risk because he failed to establish his claim.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator.

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

11.The Board considered the applicant’s evidence and found that the applicant’s evidence was unreliable. At paragraph 6 of the Board’s Decision, the Adjudicator had posed a number of rhetorical questions, on which he had doubts. However, he had not put all those questions to the applicant for answers at the hearing. The rhetorical questions are:

“Why he left Pakistan, why he chose Hong Kong, why in the absence of having sustained any injury when an obvious and a cheaper method to avoid S and M was to simply move elsewhere in Pakistan, and he was living safely for a long time in Jhelum, yet he would travel 4,700 km to such a far-away place as Hong Kong, why he chose to sneak into Hong Kong illegally…the answers to all these matters he would himself naturally know……”

12.If the Board disbelieved the applicant’s motive or purpose of coming to Hong Kong based upon all those questions above, it is only fair for it to put them to the applicant for his explanation before it came to a conclusion. If the Board only relies upon this analysis to reject the applicant’s appeal, I would say that the applicant has reasonable cause to complain. However, the Court of Final Appeal had held that for application for leave to apply for judicial review, the Court, in consideration the application, has to see if there is reasonable prospect of success. At paragraph 15 of the judgment in Peter Po Fun Chan (2007) 10 HKCFAR 676, the Court of Final Appeal held:

“. A reasonably arguable case is one which enjoys realistic prospects of success. Whilst the test adopted represents a higher threshold than the potential arguability test, claims which are reasonably arguable would be given leave to go forward under it. It is in the public interest that challenges which are not reasonably arguable should not be given leave to proceed.”

13.The Board, however, proceeded to consider the applicant’s case based upon the facts as he alleged and found that those facts did not satisfy the conditions for the statutory provisions for Torture risk, BOR2 risk and BOR 3 risk and the Convention on Persecution risk. Also, the Board found that relocation was an option open to the applicant.

14.Therefore, all grounds in support of his claim failed.

Application for leave to apply for judicial review

15.The applicant filed Form 86 on 13 September 2018 for leave to apply for judicial review of the Board’s Decision.

16.The applicant’s application is late. The Board’s Decision is dated 27 April 2018 and Form 86 was filed on 13 September 2018, which is more than three months from the date of the Board’s Decision. I shall have to determine whether extension of time should be granted to him for his application by reference to the merits of his application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §§27 & 35.

17.The applicant attached the grounds in support of his application to Form 86. I shall summarize his grounds as follows:

(1) he would face the ill-treatment, which would meet the minimum level of severity as decided in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743; and

(2) right to freedom under BOR 3 is an absolute and non-derogable right and he should not be sent back to Pakistan.

DISCUSSION

18.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.The Board did not accept that the applicant had established his claim by reference to the relevant statutory provisions and Convention.

20.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal 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.Ground (1) is the applicant’s opinion only. He failed to show any evidence in support of his view. Having considered the Board’s Decision, I consider that the Board was entitled to come to its decision as it did. Ground (2) is also the applicant’s opinion, which does not assist his case.

22.Other than the comments on the Board’s finding of the facts on the applicant’s motive or purpose of coming to Hong Kong above, I find that there is nothing to show that the Board had committed any error in its application of the law to his case. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

23.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

24.I therefore refuse to grant the extension of time for the applicant to apply for leave to apply for leave for judicial review. Accordingly, I dismiss his application.

Dated the 7^th day of August 2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 7/8/2020 Baig Mirza Noman Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 7/8/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1097/15/3/17/P338 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 729/14 & RBCZ 9001664/17 (formerly RBCZ/1796/09) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)