Muhammad Imran Aslam v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 2615/2018

[2021] HKCFI 1515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2615 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 21 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application filed on 20 November 2018 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 from Shenzhen on 22 November 2012.  He lodged a non-refoulement claim on 12 December 2012.

5.He claimed that if refouled, he would be harmed or killed by members of the MQM extorters because he was unable to satisfy their demand for money from time to time.

6.The applicant was running a business of manufacturing bed sheets in Karachi.  Members of the MQM came to him and demanded money from time to time.  He paid them initially.  But at a later stage, he was unable to pay them.  They had assaulted and injured him for a number of times.  They hit him with bare hands, sticks or the butts of their guns or pistols.  They threatened to kill him if he reported to police.  He complained to police twice.  No investigation was made.  He was told by a police officer that he should not complain against MQM in future or he would be shot or detained.  In October 2012, his shop was on fire.  He suspected that the fire was set on by members of the MQM.  He complained to police, but the police refused to make investigations into the matter.  The fire caused a great loss to his business, as a result of which, his family was in financial hardship and had to close down their factory.  He believed that the MQM people were targeting him.  He left Pakistan for China.  Details of the story are set out in paragraph 9 of the Director’s Decision described below.

The Director’s Decision

7.The applicant had made a torture claim before and was rejected.  The Director considered his application in relation to the following risks:

a. 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”);

b. 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

c. 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”).

8.By Notice of Decision dated 17 November 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that there was no reasonable likelihood that the risk of harm from the MQM people as he described was real and foreseeable [14]; that state protection was available to him [21] and internal relocation was an option open to him [25].

The Board’s Decision

9.The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 13 March 2018.

10.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that whilst the Board did not reject his evidence wholesale, his evidence was inconsistent; that his evidence of extortion by the MQM people and the fire on his shop might have been fabricated; that the other aspects of his evidence was fabricated and concluded that there was not a real risk, a real chance or substantial or strong ground for believing that he would be pursued by any person associated with the MQM upon his return to Pakistan.  See paragraphs 31-45.  The Board rejected his claim on all of the risks in paragraph 7 above.

Application for leave to apply for judicial review

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

12.In his affirmation in support of his application, he said that he is not satisfied with the Board’s Decision because he life is still in danger in his country.

DISCUSSION

13.As mentioned in paragraph 1, this application is late.  In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  I shall first consider the merits of the applicant’s 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 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 3^rd day of June 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