Mazhar Bashir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2230/2018

[2021] HKCFI 450

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2230 OF 2018

BETWEEN

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:

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”) refusing to allow late filing of notice of appeal/ petition against the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1970, is a national of Pakistan.  He arrived in Hong Kong unlawfully.  On 7 December 2006 he surrendered himself to the Immigration Department for investigation claiming to have sneaked into Hong Kong illegally on 1 November 2006. On 19 March 2008, he lodged a non-refoulement claim.

3.Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by (1) some Shia Muslim men (“the Shias”) with whom he ran into trouble while in Japan, and (2) his foster father because he thought the applicant had converted religion from Muslim to Ahmadi.  The applicant claimed that he was born in Japan but he had no right of abode in Japan.  He was brought up by his foster parents in Pakistan when he was 7-month old.  In 1990 at the age of about 20, he went to Japan and lived there illegally for 13-14 years.  In Japan, he had troubles with some Pakistani men who are Shia and they had attacked the applicants.  In 2003, he returned to Pakistan to live with his foster parents.  One day in around 2004 in Pakistan, he met the same Shia people who had injured him in Japan.  They threatened to kill him.  He met them again in about 2005 and they tried to shoot him with guns but failed to hit him.  In April 2006, the Shias came to his home and told his foster father that they saw him giving funds to the Ahmadis.  Hence his foster father believed that he had changed religion from being a Muslim to an Ahmadi.  The Shias also threw a knife at him but it missed and he ran away.  In fear of danger, he left Pakistan on 20 September 2006 by bus for China.

The Director’s decisions

4.By notices of decision dated 24 February 2015 and 2 February 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].  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low.  He found that state protection is available to the applicant and internal relocation is a viable option for him.  The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decisions

5.The applicant attended a hearing before the Board on 4 February 2016 for his appeal against the first decision of the Director.  He elected to remain silent at the hearing.

6.By a decision dated 29 November 2016 (first decision of the Board), the Board rejected the appeal/ petition confirming the Director’s first decision.  The Board’s first decision covered the BOR 3 risk, the persecution risk, and the torture risk.  In a nutshell, the Adjudicator of the Board found the applicant dishonest, his alleged story unreliable, and that he is not a genuine claimant who fails to establish his case.  Moreover, the Adjudicator found there is reasonable state protection and internal relocation is a viable option for him.  The Adjudicator did not accept that a handful of Shias for matters over 9 years ago are interested in locating the applicant all over Pakistan.  Therefore, even if all the alleged misfortunes existed, they did not establish any substantial risk of Torture, CIDTP or Persecution.

7.By a decision dated 3 October 2018 (second decision of the Board), the Board refused to allow late filing of the notice of appeal/ petition against the second decision of the Director (dated 2 February 2017) as the filing of the notice of appeal/ petition on 30 March 2017 was 1.5 months late when the deadline fell on 18 February 2017.

8.In Section 5 of the notice of appeal/ petition, the applicant gave the reason for the delay as having been sick and submitted copies of attendance and appointments from a hospital.  The Adjudicator examined all these documents carefully [8].  In short, he noted that each medical document only showed short attendance which had no material relevance to the appeal period.  They could not assist the applicant to prove his inability to file the appeal in time.  The Adjudicator found that the applicant had not shown any reasonable excuse for the delay of 1.5 months.  He further observed that there is nothing in the facts relied on by the applicant as he alleged in his “USM” case and there is nothing new now which might amount to special circumstances by reason of which it would be unfair or unjust not to allow the late filing of the notice of appeal/ petition [9].

9.The Adjudicator was also the same adjudicator of the Board in its first decision.  He stated that “For the sake of completeness” he would further examine the applicant’s alleged story to see if there is any merit.  He accepted that if there is strong merit in the substance of a case, it may lead to a grant of extension of time [11].  The Adjudicator then referred to the first decision of the Board, in which the Board found there is no merit in the applicant’s claim.  As the applicant provided nothing new in support of the BOR 2 risk, it concluded that his claim even if allowed to proceed out of time, would have no prospect of success [12].

10.For these reasons, the Board refused the application for late filing of the notice of appeal/petition.

Application for leave to apply for judicial review

11.The applicant filed a Form 86 on 12 October 2018 for leave to apply for judicial review of the decision of the Board dated 3 October 2018, referring to the second decision of the Board refusing the late filing of notice of appeal/ petition.

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

13.In the Form 86 and supporting affirmation, the applicant did not set out any grounds for the relief sought.  He only attached 223 pages of documents which mainly consist of the hearing bundle before the Board and a few pages of documents issued by a hospital.  On the face of it, these medical documents appeared to be those submitted to and considered by the Adjudicator.

Discussion

14.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.

15.When the applicant pursued the appeal 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, this decision will focus on discussing the Board’s decisions.

16.Section 37ZT of the Immigration Ordinance relevantly provides for the followings in relation to late filing of appeal/ petition:

(1)  the applicant to provide information in support of the application for leave to file late, which must include:

(a)  a statement of the reasons for failing to file the notice within the 14-day period; and

(b)  any documentary evidence relied on in support of such reasons;

(2)  matters which the Board may take into account in considering whether to allow late filing are confined to:

(a)  reasons stated for the late filing, and supporting documentary evidence filed; and

(b)  any other relevant matters of fact within the knowledge of the Board; and

(3)  if the Board is satisfied that by reason of special circumstances it would be unjust not to allow the late filing, the Board may allow the late filing.

17.The Notice of Appeal/ Petition filed with the Board in respect of the second decision of the Board was almost 1 ½ months late.  The delay was not insignificant.  The applicant explained that he was sick.  However, he did not give details about it, nor the diagnosis and how his illness affected his ability to file the notice of appeal in time.  The medical documents submitted by the applicant simply could not assist him to explain away the delay in his appeal.  I agree with the Board that the applicant had not shown any reasonable excuse for the delay.

18.The Court of Appeal held in Re Qasim Ali [2019] HKCA 430, 8 April 2019 that regardless of the procedural breaches or the lack of explanation therefor, the Board should take account of the merits of the appeal in its determination of whether there are special circumstances that would make it unjust not to allow the late filing of the Notice of Appeal.

19.The Board has taken into account of the merits of the applicant’s claim.  The presiding Adjudicator of the Board in its second decision was also the Adjudicator in its first decision.  He had had the benefit of considering the merits of the applicant’s claim in the first decision of the Board.  He found the evidence of the applicant unreliable.  In any event, there is reasonable state protection and internal relocation a viable option.  Even if the alleged facts existed, no substantial risk of torture or CIDTP or persecution could be established.

20.The Board also evaluated the BOR 2 risk and found that there is nothing new in support of such risk [12].  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.

21.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.

22.The applicant stated no grounds of the judicial review in Form 86.  He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.  Nor was there a challenge with regard to procedural regularity and fairness.

23.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 in both decisions of the Board.

24.Further, even if one gives the claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating at the most a remote and unreal risk of future harm.  There was no valid reason why the Shias would still wish to pursue him after so many years, and why his foster father would simply believe mere words of the Shias to believe that he had changed his religion and harm him. The fear of the applicant, if any, are not real or well founded.

25.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.

26.Having considered the decisions of 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 their decisions.  Nor do I see any failure to apply high standards of fairness.

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

Disposition

28.Accordingly, leave to apply for judicial review is refused.

Dated 2 March 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