Aziz Ahmed v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1378/2021

[2021] HKCFI 3367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1378 of 2021

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 applicant is being detained in the Castle Peak Bay Immigration Centre.

2.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) is the proposed respondent and Director of Immigration is the interested party, and relief is sought to set aside the Board’s Decision dated 19 June 2020 (“the Board’s 2^nd Decision”).

3.This is the applicant’s application for leave to apply for judicial review of the Board’s 2^nd Decision” on the BOR 2 risk only, the Board’s 1^st Decision dated 23 July 2015 being on other risks.  His application filed on 30 September 2021 is late for about one year, a significant delay.  I shall deal with this issue below.

4.The applicant does not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall consider his application on the papers.

The applicant

5.The applicant is a citizen of Pakistan.  He was arrested by police on 26 May 2003 for overstaying in Hong Kong and was referred to the Immigration Department.  His application dated 29 September 2007 for protection for torture claim was withdrawn and re-opened and was later converted into non-refoulement claim in the unified screening mechanism on 3 March 2014.

6.The applicant claimed that, if refouled, he would be harmed or killed by the supporters and members of Pakistan People’s Party (“PPP”) because he supported Pakistan Muslim League (N).  He was also afraid that he would be persecuted as he gave assistance to Christians.  He considered that the Pakistani government could not protect him.

7.In 1996, he was attacked by the PPP people with sticks and weapons during the voting campaign and he lost consciousness.  There was a false charge of murdering a PPP member against him.  He was arrested and detained for a few days.  He was tortured during his detention.  Police officers burnt his feet with lighters.  He was bailed out.  In 1997, he assisted the Christian community in his village.  He was mistaken as having converted to Christianity.  His uncle had a dispute with him and shot him.  He was not injured.  But his uncle framed him up for attacking him.  He was arrested and detained for 20-25 days.  He was beaten up by the prison officers with batons.  He was bailed out.  During this period of time, he was able to hide himself to live in some other places.  In 1999, he learned that some Muslim brothers wanted to demolish a church.  He joined the other people to persuade them not to do so.  His uncle was angry at him and attacked him with a sharp knife, injuring his right leg.  Finally, he fled Pakistan for China, from where he came to Hong Kong.  Details of his story are set out in paragraph 15 of the Director’s Decision described below.

The Director’s Decisions

8.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”). 

9.By Notice of Decision dated 6 February 2015 (the “Director’s Decision”) and Notice of Further Decision dated 6 March 2017 (the “Director’s Further Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director assessed the level of risk of him being harmed or killed if he returned to Pakistan to be low [19]; that state protection would be available to him [27] and that internal relocation was an option open to him [28].  By the Director’s Further Decision, the applicant’s claim on BOR 2 risk was rejected for the reason that he failed to establish, by evidence, that he right to life under BOR 2 would be violated [6].

The Board’s Decisions

10.The applicant appealed against the Director’s Decision by filing the notice of appeal on 16 March 2015, the deadline being on 23 February 2015.  He was late for filing the notice of appeal.  He gave the explanation that he was upset because his father passed away and he did not know how to do it.

11.The Board was not satisfied with his explanation. The Board also said that it was unable to consider the strength of the grounds of appeal because it did not have sufficient documents or information.  The Board, by its 1^st Decision, refused to extend time for him to file the Notice of Appeal, in effect, dismissing his appeal.

12.The applicant did not apply for leave for judicial review of the Board’s 1^st Decision, which, therefore, has become final.

13.The applicant filed the notice of appeal on the Director’s Further Decision.  His appeal was dealt with on paper by the Board and was dismissed by its 2^nd Decision.  The Board found that the applicant failed, on the facts as found, to prove there was a genuine and substantial risk, as well as a personal risk of irreparable harm, either in the receiving country or in any country to which he might be subsequently be removed [11].

Application for leave to apply for judicial review

14.The applicant filed Form 86 on 30 September 2021 for leave to apply for judicial review of the Board’s 2^nd Decision.

15.In his affirmation in support of his application, he said that he was not satisfied with the Decision of the Immigration Department and his life would be in danger if he returned to Pakistan.

DISCUSSION

16.As mentioned in paragraph 1, the applicant’s application is late for about one year (between 19 September 2020 and 30 September 2021).  The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted.  Also, the Court should not grant extension for a hopeless application.  See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. 

17.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA.  §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

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

“13. (1) … …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.”

20.I shall take into account the following special circumstances of the applicant’s case, which I consider to be exceptional circumstances that this Court should also take into consideration of the Board’s Decision:

i.  the delay of one year is a long delay;

ii.  the applicant’s application for judicial review is only in respect of the Board’s 2^nd Decision;

iii.  since, there is no application for judicial review of the Board’s 1^st Decision, the 1^st Decision has become final;

iv.  the Board had not considered the merits of the Board’s 1^st Decision in refusing extending time for the applicant to file his Notice of Appeal; and

v.  the Board’s 2^nd Decision has invariably to rely on the facts of the Director’s Decision.

21.Although the applicant’s application for judicial review is in respect of the Board’s 2^nd Decision, which is squarely on BOR2 only, I have to bear in mind that the Board must have based upon the facts of the Director’s Decision in respect of the other risks, ie.  Torture risk, BOR 3 risk and Persecution risk.  In the Board’s 1^st Decision, the Board did not state that it had considered the Director’s Decision for determining the merit of the case.  It focused its attention on the explanations of the applicant for his late filing of the Notice of Appeal.  In accordance with the subsequent decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, the Board should take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.  See §20.  If this application is on the Board’s 1^st Decision, this authority may render the Board’s 1^st Decision subject to procedural irregularity.  Even so, the Court still has to consider, under the relevant circumstances, whether the applicant’s application for judicial review has a realistic prospect of success according to the decisions of the Court of Final Appeal in Peter Po Fun Chan (2007) 10 HKCFAR 676 §15:

“15. The purpose of the leave requirement would be better served by the adoption of the arguability test instead of the potential arguability test. The granting of leave to apply for judicial review is a matter for the court’s discretion to be exercised judicially. The test which should be applied is the arguability test. Under this test, arguability must mean reasonable arguability. A claim for relief which is not reasonably arguable could not be regarded as arguable. A reasonably arguable case is one which enjoys realistic prospects of success.”

22.In the exercise of discretion by this Court in determining whether the applicant’s application has realistic prospect of success, this Court has the discretion of considering the Director’s Decision as held by the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743:

“184. … … it is generally for the applicants to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3. The Court is also entitled to take account of the latest available evidence and so was entitled to consider the contents of the Director’s letter [Director’s Decision] … …”

23.This Court will therefore take into consideration of the Director’s Decision, which was not taken into account by the Board in its 1^st Decision.

24.Having considered the Director’s Decision, it is clear that the Director had decided as facts of the case that the risk of the applicant of being harmed or killed if he returns to Pakistan is low, that state protection will be available to him and that internal relocation is an option open to him, which had already shown by him hiding away after he was attacked by the PPP people between 1997 and 1999.  See paragraph 7 above.

25.In the Notice of Appeal, the applicant had not set out any specific grounds. 

26.In the circumstances, I find that the applicant has no realistic prospect of success in his intended judicial review application in respect of the Board’s 2^nd Decision, taking the facts of the Director’s Decision into account.

27.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 17^th day of November 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