Ejaz Adnan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1286/2018

[2021] HKCFI 625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1286 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 submissions by the Applicant in open court.

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 20 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”).

2.The applicant’s non-refoulement claim was dealt with by the Director of the Immigration Department (“the Director”) on Torture risk, BOR 3 risk and Persecution risk as described below.  By Notice of Decision dated 24 October 2014 (“the Director’s Decision”), the Director refused his claim on those risks.

3.The applicant appealed to the Board against the Director’s Decision. By Decision dated 29 June 2015 (“the Board’s First Decision”), the Board rejected his appeal and affirmed the Director’s Decision.

4.By letter dated 30 December 2016, the Director invited the applicant to supply additional information for him to consider his claim on BOR 2 risk. The applicant did not supply any further information to the Director. The Director then assessed his case and made its Decision dated 17 January 2017 (“the Director’s Further Decision”) rejecting his claim on BOR 2 risk.

5.On 9 March 2017, the applicant filed his Notice of Appeal (“the 2^nd Notice of Appeal”) to the Board against the Director’s Further Decision. He was late for one month and seven days. By the Board’s Second Decision, the Board refused to grant extension of time for him to file his Second Notice of Appeal.

6.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

7.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

8.Although the applicant did not apply for leave for judicial review of the Board’s First Decision, I shall, nevertheless, consider the Board’s First Decision because the Board had obviously considered its First Decision and decided not to extend time to the applicant to file the 2^nd Notice of Appeal out of time.

The applicant

9.The applicant is a Pakistani national. He came to Hong Kong illegally in May 2007 and was arrested by police on 22 December 2007.  He lodged his non-refoulement claim with the Immigration Department on 6 January 2008.

10.He claimed that if refouled, he would be harmed or killed by an influential family because they want information from him about his friend, whom the family suspected to have killed one of its member.  The killing arose out of a dispute between his friend and a member of the influential family.  The member of the family was killed by a gunshot.  He did not have direct knowledge of where his friend got the gun from.  However, the family had kept on harassing him.  They had gone to his home for information.  When he said he did not know the whereabouts of his friend, they assaulted him.  He was injured.  This happened several times. They threatened to kill him.  He had to hide himself in several places to avoid them.  He finally fled for Hong Kong. Details of the incident are set out in paragraph 6 of the Director’s Decision.

The Director’s Decision

11.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

12.By the Director’s Decision, the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that the level of risk of harm from the influential family upon his return to Pakistan was assessed to be low [11]; that state protection was available to him [14] and internal relocation was an option open to him [15].

13.By the Director’s Further Decision, the Director rejected the applicant’s claim on BOR 2 risk for the reason that he failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights being violated upon his return to Pakistan.

The Board’s Decision

14.The applicant appealed to the Board against the Director’s Decision.  He attended the hearing on 12 May 2015.  

15.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)  Having considered the applicant’s evidence, the Board found that he was not a truthful witness. It found that some of his evidence were illogical, some were only hearsay without any substance. For things that he could not answer, he blamed it on the interpreter during the interview as well as the interpreter who helped him to complete the Non-refoulement Claim Form. [20] See also paragraphs 22-24 of the Board’s Decision.

(2)  State protection is available to him if he returns to Pakistan. [38]

(3)  For the reason that his factual evidence was not accepted and that the risks were not within the context of the statute or Convention, the Board rejected the applicant’s claim on Torture risk [37], BOR 3 risk [41] and Persecution risk [44].

(4)  Internal relocation was an option open to him [49].

16.The applicant did not apply for leave for judicial review of the Board’s First Decision.

17.The applicant then filed the 2^nd Notice of Appeal to the Board against the Director’s Further Decision. The 2^nd Notice of appeal was late for one month and seven days.

18.The Board had taken the factors as follows into consideration:

(1)  it is an undue delay;

(2)  its previous Decision;

(3)  the applicant’s explanation: “I received yesterday this letter [the Notice of the Board’s 2^nd Decision].”, which the Board did not accept because there was no documentary evidence such as the envelope with the date chop to prove his case;

(4)  after going through all the documents, there was no merit in the applicant’s application; and

(5)  there were no special circumstances which made it unjust not to allow the late filing of the 2^nd Notice of Appeal.

19.By the Board’s Second Decision, it refused to extend time for the applicant to file his 2^nd Notice of Appeal.

Application for leave to apply for judicial review

20.The applicant filed Form 86 on 5 July 2018 for leave to apply for judicial review of the Board’s Second Decision.

21.In his affirmation in support of his application, he said that his life would be in danger if he returned to his country.

DISCUSSION

22.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

23.In Re: Kartini [2019] HKCA 1022, 9 September 2019,the Court of Appeal held:

“13.… … Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

24.His ground in support of this application does not assist his application.

25.The Court does not find any error of law or procedural unfairness in the Board’s First Decision. The Board had considered the merits of his case before it made its Second Decision not to extend time to him to file his 2^nd Notice of appeal. Since the Board did not accept the facts of the applicant’s case, the applicant has no factual basis in support of his application on all the risks, including the BOR 2 risk. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

26.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

27.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 16^th day of 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