Reffaqat Hussain Shah, also known as Rifaquat Hussain Shah or Refaquat Hussain Shah v. Torture Claims Appeal Board / Non-refoulement Claims

HCAL 1288/2018

[2021] HKCFI 671

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1288 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent 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 16 June 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Only the first name is stated in Form 86. The aliases have been verified by the Immigration Department by its letter dated 2 March 2021 pursuant to a request from the Court. This application is late. I shall deal with this issue below.

2.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.

3.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.

The applicant

4.The applicant is a Pakistani national. He had come to Hong Kong illegally before and was repatriated.  On 1 August 2014, he sneaked into Hong Kong and was arrested by police. He lodged his non-refoulement claim to the Immigration Department. Subsequently, he withdrew his application, but later sought to re-open his non-refoulement claim again. The Immigration Department acceded to his request.

5.He claimed that if refouled, he would be harmed or killed by his uncle Sadiq because of a dispute over a piece of land inherited from his grandfather. His father reached an agreement with Sadiq that in exchange of some pieces of land from his father, his father should take the whole piece of land inherited from his grandfather. Sadiq agreed but later reneged on his promise. When he and his father went to take possession of the inherited land, Sadiq refused to hand it over to them. Sadiq got his sons to assault him and his father. They were injured and fled the place. Sadiq had also threatened to kill him as he would be inheriting the land from his father. He took his father’s advice and left Pakistan for Hong Kong. He had come back to Pakistan because his wife was ill. When she has recovered, he left Pakistan again. Details of the incidents are set out in paragraph 19 of the Board’s Decision.

The Director’s Decisions

6.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”).

7.By Notice of Decision dated 23 July 2015 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of harm from Sadiq in Pakistan was assessed to be low [13]; that state protection would be available to him [15] and internal relocation was an option open to him [16]. By Notice of Further Decision (“the Director’s Further Decision”), the Director rejected his claim on BOR 2 risk for the reason that he was unable 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 [6].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decisions. He attended the hearing before the Board on 2 February 2017 and 16 February 2017 respectively.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision and Further Decision for the reasons as follows:

(1)  there was no substance nor merits in his claim for non-refoulement protection in Hong Kong - see paragraph 24;

(2)  state protection would be available to him upon his return to Pakistan [30]; and

(3)  internal relocation was an option open to him [44].

Application for leave to apply for judicial review

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

11.In his affirmations in support of his application, he only exhibited the Board’s Decision without stating any reasons to support his application.

DISCUSSION

12.As mentioned in paragraph 1, this application is late for more than 9 months. Leave from the Court is required for the filing of this application.

13.The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14, July 2020, Fok PJ held:

“39. … … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.”

I shall now consider the merits of the case.

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.

15.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.”

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

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

19.I therefore refuse to extend time for the applicant to apply for leave to apply for his intended judicial review. Accordingly, I dismiss his application.

Dated the 19^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

Form CALL-1