Kashif Butt v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 994/2018

[2020] HKCFI 2591

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 994 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:

Leave to apply for Judicial Review be refused.

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 1974, is a national of Pakistan.  Immigration records reveal that he first arrived in Hong Kong in September 1999 as a visitor.  He overstayed and was arrested on 16 April 2000 and removed back to Pakistan on 7 May 2000. On 10 July 2000, he came to Hong Kong again and was permitted to remain as a visitor.  He again overstayed and was arrested and removed back to his country on 11 March 2002.  He last departed Pakistan for China in December 2005 and remained on the mainland for 3½ years before he entered Hong Kong illegally on 3 July 2009.  On 14 September 2009 he was arrested by the police and subsequently released on bail.  He failed to attend his court hearing for illegal remaining and was only later located after a warrant for arrest had been issued against him.  He was then convicted and sentenced to 15 months’ imprisonment for illegal remaining in Hong Kong.

3.On 5 July 2010, the applicant lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“torture claim”).  His torture claim was rejected by the Director on 25 February 2011 under Part VIIC of the Immigration Ordinance, Cap 115. In May 2013, he made his non-refoulement claim.  His application was then assessed under the Unified Screening Mechanism (“USM”) by the Director on all applicable grounds, namely, BOR 2 risk, BOR 3 risk and risk of persecution other than risk of torture under Part VIIC of the Immigration Ordinance.  The Director rejected his claim on 11 November 2016.

4.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [14-22] 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 one named Malik as a result of an outstanding debt owed by Malik to the applicant’s family.  He also had a “land dispute” with Malik who had assaulted him to force him to give up his land.  Malik further organized false criminal charges to be filed against him.  He worried that he would lose the case and be sent to jail.  He also feared he would be killed or located by Malik and his gang due to his strong connection with a political party.  He therefore decided to leave Pakistan with his passport and stayed on the mainland before he fled to Hong Kong.

The Director’s decision

5.A Notice to Persons Making a Non-refoulement Claim was served on him in which he was informed that the Director’s previous refusal decision regarding his torture claim would not be reviewed under the Unified Screening Mechanism (“USM”).  His claim for non-refoulement protection would therefore be assessed by the Director on all applicable grounds, namely, BOR 2 risk^[1], BOR 3 risk^[2], and persecution risk^[3] other than risk of torture under Part VIIC of the Immigration Ordinance.

6.By a notice of decision dated 11 November 2016, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The Director doubted the credibility of the applicant’s claims.  In any event, the Director assessed that there is no substantial risk of his being harmed or killed and found state protection as well as internal relocation as a reasonable option available to the applicant.  The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

7.The applicant did not attend the oral hearing before the Board on 3 January 2018.  A written notice of the Board’s intention to determine the appeal in his absence and that he might submit to the Board within 7 days a written explanation for his failure to attend the hearing was sent to him by post to his last known address.  No response was received by the Board within the specified time.

8.By a decision dated 14 February 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered BOR 2 risk, BOR 3 risk, and persecution risk.

9.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [29-44] of its decision.  The essential reasons can be summarized as follows: 

(1)     The applicant failed to attend the hearing and the Board was denied the ability to question him about his claims and to test their veracity and it was not satisfied that he left Pakistan and cannot return there for the reasons he claimed [32];

(2)     It was not satisfied that his claims about his feared harm from Malik and outstanding charges against him are truthful [38, 40, 44].

10.Having considered all the evidence, the Board concluded that the applicant is not entitled to non-refoulement protection in Hong Kong on any of the grounds under USM.

Application for leave to apply for judicial review

11.The applicant filed a Form 86 on 1 June 2018 for leave to apply for judicial review of the decision of the Board dated “23-03-2018” (sic).  It is apparent that the intended application was against the Board’s decision dated 14 February 2018.  The application is considered on that proper basis.

12.In the Form 86 and affirmation in support, the applicant did not set out any grounds for the relief sought, other than repeating that his life will be in danger if he returns to his country.  No request for oral hearing was made.  The application is considered on the papers.

Discussion

13.The relevant principles regarding 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, country of origin information, 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.

14.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 decision will only focus on discussing the Board’s decision.

Application out of time

15.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 will 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: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

16.The principles have been further explained by the Court of Final Appeal in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 37.

17.In this case, the 3-month time limit ended on 14 May 2018 and the application was late by about 2 weeks.  The delay was not substantial but the applicant did not request extension of time or give explanation for the delay.  I cannot find any good reason for the undue delay.

Merits of the intended application

18.Nevertheless, I will focus the merits of the intended judicial review.  Far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

19.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it was not satisfied that his claims were truthful based on all the materials before it.  It could not be satisfied on the basis of the evidence that there are substantial or strong grounds for believing there is a real risk that he would be subject to torture or CIDTP.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.

20.As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

21.The Form 86 and affirmation in support did not contain anything to demonstrate why the Board was unfair or unreasonable in the public law sense.  Repeating his claimed danger is not a viable ground.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

22.Indeed, the applicant has been in Hong Kong since July 2009.  His conduct in Hong Kong by his delay in lodging the claim for protection after he entered Hong Kong unlawfully was inconsistent with someone in genuine fear for his life and safety.  It could be taken into account as damaging the applicant’s credibility.  The Board was entirely entitled to reject the applicant’s claims as credible.

23.On the evidence of the case, there cannot be any criticism of the decisions of the Director and the Board which are entirely 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 prospect of success in the applicant’s intended application.  There is no good reason to extend time for the application.  Accordingly, I refuse to grant leave to apply for judicial review.

Dated 22 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