Naseer Muhammad v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 451/2019

[2020] HKCFI 2299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 451 OF 2019

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 C P Pang:

1.     Extension of time for the application for leave to apply for Judicial Review be refused; and

2.     Application for leaveto apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1991, is a national of Pakistan.  On 6 October 2015, he was arrested by the police for being an illegal immigrant and referred to the Immigration Department.  He then lodged a non-refoulement claim.  He was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para 5-10 of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by his uncle, Hashim Khan, and his son, Qasim.  He claimed that his father inherited a farmland from his grandfather.  Hashim wanted the land for himself.  Hashim and Qasim are supporters of Pakistan Muslim League party, while he and his father support another political party.  In mid-2014, Hashim and Qasim came to the applicant’s home and demanded the farmland.  The applicant refused and was assaulted and threatened that they would kill him if his father refused to transfer the land to them.  He reported the case to the police but they refused to help.  He therefore left Pakistan on 2 October 2015 for China and eventually came to Hong Kong.

The Director’s decision

4.By a notice of decision dated 18 December 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for the reason that the claim was not substantiated.  The decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.  He attended a hearing before the Board on 28 May 2018.

The Board’s decision

5.By a decision dated 12 October 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

6.The Board gave detailed reasons for rejecting the claimat para 44-53 of its decision.  In a nutshell, the Board found that the appellant was not an impressive witness.  His evidence was vague and inconsistent [48].  While the Board attached some credence to the claim that he was assaulted by his uncle and his son, it was however only a one off and isolated incident.  The land continued to be occupied by his father.  There was no satisfactory explanation why his uncle and his son would target the applicant and yet leave his father in peace [49].  Moreover, the Board found that there is adequate state protection in Pakistan and the applicant can live safely in other parts of the country.  Having considered the totality of the evidence before it, the Board concluded that the applicant’s claimed fear to be far-fetched and fanciful [53] and he failed to show a genuine and substantial risk of being subjected to the alleged ill-treatment, if refouled [63].

Application for leave to apply for judicial review

7.The applicant filed a Form 86 on 18 February 2019 for leave to apply for judicial review of the decision of the Board.  He did not request an oral hearing.  The application is therefore considered on the papers.

8.In the Form 86, the applicant stated that he was not satisfied with the Board’s decision.  In his affirmation in support, he said his life was threatened in Pakistan and his family was also threatened many times.

Discussion

9.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

10.As the Director’s decision has been superseded by the Board’s decision, is not susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the Court examines the decisions of the Director and the Board, the Observations for the Applicant will only focus on the latter’s decision.

11.The applicant’s intended application for judicial review was made out of time.  Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  In considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393. 

12.The relevant principles have been further explained in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020 (heard together) given on 14 July 2020.  Briefly, the following are principles relevant to the present case: (a) an application made outside the three-month period will entail undue delay; (b) as such, an extension of time is required, and to justify an extension of time, the applicant must show good reason for extending the period; among the various factors likely to be significant are the merits of the substantive application; (c) indeed, even if there exists good reason for undue delay, the grant of leave to commence judicial review will also depend on the arguability test (among other factors); the arguability test requires the applicant to demonstrate to the court that his case is one that enjoys realistic prospects of success: Re Mohamed Cassim Jawfar CAMP 16/2020, [2020] HKCA 633 para 15.

13.The application was late by more than one month.  Though the delay was not a very substantial one, the applicant did not provide any explanation for it.

14.As for the merits of the intended application, far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

15.In the present case, the Board rejected the applicant’s appeal/ petition as it disbelieved the applicant and found that his claimed fear was far-fetched and fanciful.  It also found that state protection and local relocation are available to the applicant.

16.As mentioned, assessment of risk of harm, state protection and viability of internal relocation are all within the province of the Board and the Director, this court will not interfere with the decisions unless there is a public law ground for the Court to do so.  Even on his own account, the past ill treatment was of low intensity and frequency.  It came nowhere near the level of severity required to substantiate his claim for protection.

17.His complaint in the Form 86 and affirmation did not pinpoint any procedural irregularity, unfairness or unreasonableness of the Board.

18.The records show that the Board engaged in a joint endeavour with the applicant and considered all relevant criteria, gave the applicant a reasonable opportunity to state his case, and enquired into the issues appropriately.  There cannot be any criticism of its determination which is eminently reasonable.

19.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I find any failure on their part to apply high standards of fairness.

Disposition

20.For the reasons given, there is no prospect of success in the applicant’s intended application.  I accordingly refuse to grant extension of time and dismiss the application.

Dated 14 September 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