Mehmood Nasir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 934/2018

[2020] HKCFI 2473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 934 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 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 1989, is a national of Pakistan.  On 10 December 2013, he surrendered himself to the Immigration Department claiming that he had sneaked into Hong Kong on foot from mainland China on 5 December 2013.  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 [ 21-51] 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 the opposite party due to a historical land dispute between his family and the opposite party which forced him to give his share in the land to them.  After his father died, the applicant and his brother inherited the piece of land from their father.  He and his brother had been threatened and assaulted.  His brother had given his own share to the opposite party but the applicant refused to give his share.  To avoid the opposite party, he decided to come Hong Kong.  In 2012, his application for visa for Hong Kong was refused.  He then approached an agent before he left Pakistan on 17 July 2013 to obtain a visa for China.  He stayed in China for 5 months before he entered Hong Kong on foot illegally in December 2013.

The Director’s decision

4.By notices of decision dated 16 October 2015 and 16 March 2017 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4].  The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decision

5.The applicant attended a hearing before the Board on 5 December 2017.

6.By a decision dated 16 January 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claimat para [63-82] of its decision.  The reasons can be summarized as follows:

(1)     There are inconsistencies between what he said in the NCF and his evidence at the hearing, which damaged the core of his case [63];

(2)     It was not persuaded that he was giving a truthful or reliable account of his personal experiences in Pakistan [64];

(3)     Even assumingthat there had been a historical land dispute, it was not persuaded that he was attacked or targeted as he claimed [69];

(4)     He had largelyinvented a story for himself to advance his claim [70];

8.Having considered the totality of the evidence before it, the Board rejected substantially all the applicant’s factual basis underlying the applicant’s non-refoulement claim.  It concluded that the applicant would not be at any real risk of harm or ill-treatment, if refouled.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 25 May 2018 for leave to apply for judicial review of the decision of the Board.

10.By a letter dated 12 June 2020, the court invited the applicant to confirm whether he would like to make any submission and to have an oral hearing.  Since then, the applicant has not made any response or submission to the court.  The applicant did not request an oral hearing.  The application is therefore considered on the papers.

11.In the Form 86, the applicant did not set out any ground for the relief sought.  In the affirmation in support, he said the Board disregarded his dangerous situation.

Discussion

12.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.  In particular, 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.

13.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on discussing the latter’s decision.

Application out of time

14.It must be pointed out first that 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.

15.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.

16.In this case, the 3-month time limit expired on 16 April 2018 and the application was late by more than one month.  The delay was not a short one, for which the applicant did not provide any explanation.  I do not see any satisfactory or valid reason for the delay.

Merits of the intended application

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

18.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the account of primary facts based on the major inconsistencies and contradictions in the applicant’s evidence.  On the factual findings, there would be no basis for the applicant’s claimed fear.

19.As explained above, assessment of evidence and evaluation of risk of harm are primarily 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.

20.The ground raised by the applicant in his Form 86 and affirmation was a bare assertion without particulars to demonstrate why the Board was unfair or unreasonable in the public law sense.  It cannot amount to a viable ground, nor is it reasonably arguable to challenge the findings of the Board.

21.Even on his own account, the alleged past ill-treatment he experienced was of low intensity and frequency.  It did not reach the level of severity required by law to constitute torture or CIDTP.  He had not encountered any member of the opposite party after the assault incident he claimed to have happened.  There is no substantial ground for believing that the applicant would be at real risk of any type of proscribed harm, if refouled.

22.The Board, with the benefits of hearing the applicant’s oral evidence, rejected the non-refoulement claim mainly on its adverse finding on the applicant’s credibility for detailed analysis and reasoning set out in its decision.  I do not find any reasonably arguable basis to challenge the findings of the Board.

23.Itengaged in a joint endeavour with the applicant and considered all relevant criteria.  It 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.

24.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 see any failure on their part to apply high standards of fairness in their decisions.

Disposition

25.For the reasons given, there is no realistic prospect of success in the applicant’s intended application.  In the absence of good reason for extending the time to make the application, I refuse to extend time and dismiss the application for leave to apply for judicial review.

Dated 8 October 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