Ahmad Shahzad v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1338/2018

[2021] HKCFI 805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1338 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 1 September 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His 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 came to Hong Kong illegally on 9 April 2013. He was arrested by police on 7 August 2013.  He lodged his non-refoulement claim with the Immigration Department on 18 November 2015.

5.He claimed that if refouled, he would be harmed by his creditor named Zaheer Ahmad (“Zaheer”) because he was unable to repay the money he had borrowed from him. In 2010, he borrowed 1.5 million rupees from Zaheer for buying the printing machine for his business. However, he suffered loss in his business and he had to fold it up in 2012. Since then, Zaheer pressed him for repayment of the loan, which he was unable to do. Zaheer went to his house and threatened him that if he did not pay him, he would get him arrested and kill him. He was frightened. Upon his friend’s suggestion, he came to Hong Kong. Details of the incidents are set out in paragraphs 22-32 of the Board’s Decision.

The Director’s Decision

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 28 June 2016 (“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 loan shark upon his return to Pakistan was assessed to be low [12]; that state protection was available to him [14] and internal relocation was an option open to him [19].

8.By Notice of Further Decision dated 20 July 2017, the Director rejected his claim on BOR 2 risk as he failed to establish a personal and real risk of being arbitrarily deprived of his life if he returned to Pakistan [6]

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and Further Decision and he attended the hearing before the Board on 26 July 2017. [77]

10.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision and Further Decision for the reasons as set out below.

(1)   The Board had considered his evidence which he had given to the immigration officer and the evidence he gave before it. [44-81]

(2)   Having tested his evidence, the Board came to the conclusion that the applicant was not a witness of truth and it attached no weight to his claim that he had borrowed money from Zaheer and that part of such a loan was outstanding.  It further found that his evidence of threats made against him by Zaheer could not be relied upon and that there would be no real risk that he would be harmed if he returned to Pakistan. [82-83]

(3)   For the reason that his factual evidence was not accepted, the Board rejected the applicant’s claim on Persecution risk [86], BOR 2 & 3 risk [88] or Tourture risk [90]

(4)   He would, if he liked, face no real risk of torture if he returned and lived in Rawalpindi and Islamabad. [91]

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 9 July 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmations in support of his application, he said that he was not satisfied with the Board’s Decision, which he submitted, was unfair and unreasonable.

DISCUSSION

13.As mentioned in paragraph 1 above, this application is out of time under O.53, r.4(1) of the RHC, the Board’s Decision being 1 September 2017 and the application was filed on 9 July 2018.  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 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.

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 is only his opinion without any evidence or specific in support of it.  It does not assist his application. The Board has clearly given good reasons in support of its findings.

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 31^st 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