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

HCAL 2195/2018

[2021] HKCFI 63

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2195 OF 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;   or
	consideration of the documents and oral submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

1. extension of time for the application for leave to apply for Judicial Review is refused; and

2. the application for leave to apply for Judicial Review be dismissed.

Observations for the applicant:

Introduction

1.The applicant, born in 1982, is a national of Pakistan.  On 18 September 2013, he was arrested by the police and referred to the Immigration Department for investigation.  On 28 February 2014 he lodged a non-refoulement claim.  He was subsequently released on recognizance.  The Director of Immigration (“the Director”) by two decisions rejected the applicant’s non-refoulement claim.  His appeals to the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) were also dismissed by the Board.

2.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [2-3] of the decision of the Board dated 15 March 2017 (first 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 cousin, Naeem, because of a land dispute in Pakistan.  He claimed that he owns a piece of land which is next to the land owned by his cousin.  His cousin stopped him from building a house on his land.  One day in 2003 when the applicant was trying to build a house on his land, his cousin came to the applicant’s land with people carrying pistols.  His cousin claimed that the land belonged to him and uttered death threats.  The following day, his cousin came again with about 11 or 12 people who were armed with pistols and sticks.  The applicant had earlier summoned assistance of his friends who came with firearms.  An argument developed, one of his friends was shot in the abdomen and died.  The applicant and his remaining 2 friends fled.  His cousin soon telephoned the applicant and threatened him with death if he dared return to the land.  The applicant did not report any of the incidents to the police, but went to another area to stay with a friend for 15 days before he departed Pakistan for China on 28 August 2013.  He remained in China for a few weeks before he sneaked illegally into Hong Kong by boat on 17 September 2013.

The Director’s decisions

3.By notices of decision dated 9 September 2015 and 4 May 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].

4.Having taken into account all relevant circumstances, the Director in his first decision found that there is no indication that his cousin has a real intention to kill him and there are no substantial grounds to believe that there will be a foreseeable and real risk of serious harm to him upon his return to Pakistan.  The Director also found that state protection is available to the applicant and internal relocation is a viable option for him.

5.Subsequently the Director invited the applicant to submit additional facts, if any, which he considered relevant to a claim for non-refoulement on the ground of BOR 2 risk. The applicant did not submit any additional materials or facts.  In his second decision, the Director rejected the claim on that ground as well.

6.The applicant lodged an appeal/ petition to the Board against the Director’s two decisions.

The Board’s decisions

7.The applicant attended a hearing before the Board on 22 September 2016 for his appeal against the Director’s first decision.  He chose not to answer questions at the oral hearing.

8.By a decision dated 15 March 2017 (first decision of the Board), the Board rejected the appeal/ petition confirming the Director’s first decision.  The Board’s decision covered torture risk, BOR 3 risk, and persecution risk.

9.By a decision dated 30 August 2017 (second decision of the Board), the Board without holding another oral hearing further rejected the applicant’s claim, confirming the Director’s second decision. The second decision of the Board covered the BOR 2 risk.

10.As the main reasons for dismissing the appeals of the applicant were given in the first decision of the Board (which was not provided by the applicant), the court has requested for and obtained a copy of it from the Board.

11.The Board gave reasons for rejecting the applicant’s claim at paragraphs [17,18, 23, 24, 30-33] of its first decision.  In a nutshell, the Board found that the applicant’s cousin would not be interested in locating the applicant all over Pakistan, especially if he is elsewhere he will not be building on the land.  It noted that the applicant had not suffered severe injury or serious harm which would place him within the criteria of CIDTP.  It found no substantial ground to believe he will face a future risk of serious harm.  Moreover, the COI shows reasonable availability of state protection.  Further and in any event, he can safely live without undue hardship in places other than his home village.

12.On credibility issue, the Board made no finding but, “for the sake of completeness”, it made comments including that the applicant did not raise his non-refoulement claim in Mainland China but only raised it 5.5 months after he entered Hong Kong; his alleged story was “woefully vague” for details; and the lack of documents in support [30-31].  The Board remarked that the alleged misfortunes, even if existed, would not support his claim.

13.The Board considered the applicant’s appeal against the second decision of the Director on paper without a hearing, as the applicant had provided nothing materially new to the Director and in the notice of appeal.  In the second decision of the Board, it concluded that for the reasons stated in its first decision dated 15 March 2017, the BOR 2 risk could not be established and confirmed the second decision of the Director dated 4 May 2017.

Application for leave to apply for judicial review

14.The applicant filed a Form 86 on 10 October 2018 for leave to apply for judicial review.  In the Form 86 he named the “Torture Claims Appeal” (apparently referring to the Board) and the Director as the proposed respondents.  The decision in respect of which relief is sought was identified as “order dated 4 September 2017”.

15.No request for oral hearing has been made.  The application is therefore considered on the papers.

16.In his supporting affirmation dated 10 October 2018, he stated that “I do not agree with the adjudicator decision dated 4 September 2017 my life in danger in my homeland.  I do not want to go back to my homeland”.  He also attached 143 pages of document including 2 pages of writings repeating his claimed risk; a letter dated 4 September 2017 from the Board informing him the second decision of the Board; the second decision of the Board; and the first decision of the Director dated 9 September 2015.  The Director’s second decision and the Board’s first decision were not attached to his Form 86 or affirmation.

17.On the face of the Form 86 and the supporting affirmation, it is not clear which decisions of the Director and the Board are asked to be judicially reviewed.  In any event, when the applicant pursued the appeals to the Board, the Director’s decisions were superseded by the Board’s decisions and are no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, it is unnecessary to delve into the decisions of the Director.  Iwill focus on the Board’s decisions.

18.While in Form 86 the applicant identified the order being reviewed as an order dated 4 September 2017 (which is not the date of either decision of the Board), he was apparently referring to the second decision of the Board, quoting the date of the covering letter of the Board informing him of its second decision.  In any event, I will examine both decisions of the Board with rigorous examination and anxious scrutiny to find out if there are any error of law, irrational findings, or procedural unfairness.

Discussion

19.The relevant principles regarding non-refoulement claims 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.

Application out of time

20.It must be pointed out first that the applicant’s intended application for judicial review was made out of time, as against any decisions of the Director and the Board.  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.

21.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.

22.As against the Board’s second decision, the 3-month time limit ended on 30 November 2017 and the application was late by at least more than 10 months.  The delay was substantial and excessive.  The applicant did not request extension of time or give explanation for the delay.  I cannot find any good reason for the undue delay.  The delay is inexcusable.

23.The delay in any application against the first decision of the Board and decisions of the Director are even longer and more inexplicable.

Merits of the intended application

24.Nevertheless, I will also consider 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.

25.In the present case, the Board in its first decision did not find it necessary to make finding on the credibility of the applicant.  It considered that his appeal failed “independently of a lack of credibility”.  I understand that to mean that the primary events asserted by the applicant were accepted to be true as supporting facts of his claim.  However, even on such findings there are no substantial ground to believe that he will face a real risk of serious harm at the hands of his cousin.  Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.

26.In its second decision, based on the reasons given in its first decision and the fact that the applicant had not provided any new material, the Board rejected the claim based on BOR 2 risk.

27.As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation 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.

28.The applicant stated no grounds of the judicial review in Form 86. What he stated in his affirmation was only a regurgitation of his claimed fear.  He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.

29.I do not find any reasonably arguable basis in what he stated to challenge the findings of the Board.  Nor do I find anything amiss in the Board’s analysis on its determination of the BOR 2 risk in its second decision.  On the facts of the case, I cannot see any additional basis for advancing a case on such risk, independent from the BOR 3 risk, the persecution risk, and the torture risk.

30.Indeed, the claim of the applicant is quite unconvincing.  The applicant delayed in lodging the claim for protection after he came to Hong Kong.  He only lodged his claim more than 5 months after he was arrested.  Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety.  It could be taken into account as damaging the credibility of the claim.

31.The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

32.Having considered both decisions of 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 to apply high standards of fairness in its decisions.

33.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

34.In the absence of good reason for extending the period to make the application, I refuse extension of time to apply.  Accordingly, leave to apply for judicial review is refused.

Dated 19 January 2021

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