Waria Ansar Mehmood Jutt v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1447/2021

[2021] HKCFI 3612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1447 of 2021

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 Decisions dated 24 January 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application filed on 18 October 2021 is late.  I shall deal with this issue below.

2.The applicant is now in custody of the Immigration Department and he 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 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, the Director of Immigration (the “Director”) is the interested party and the date of the Board’s Decision is 24 January 2020.

The applicant

4.The applicant is a citizen of Pakistan.  He entered Hong Kong illegally on 24 June 2007 and was arrested by the police on 14 August 2007.  On 1 September 2007, he lodged a torture claim which was refused on 8 August 2013.  On 15 August 2013, he lodged a claim on the ground of risk subject to torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”).  His CIDTP claim was subsequently taken to be a non-refoulement claim and assessed in all applicable grounds, other than the torture risk[1].

5.The applicant claimed that, if refouled, he would be harmed or killed by Mr.  Amanullah who was associated with Pakistan Muslim League (N) (“PMLN”) for a false accusation against the applicant that he killed Amanullah’s brother Fiaz during a wedding.  He also feared that he would be killed by the Indian Army, located close to his village.  According to the applicant, Fiaz was killed in a wedding party on 22 October 2006.  Without reporting to the police and obtaining medical evidence, Amanullah laid the blame on the applicant about his brother’s death.  Feared of Amanullah’s death threats, the applicant fled to Hong Kong for protection.  While he was in Hong Kong, he heard that Amanullah and his followers came to threaten his family members.  As to the Indian Army, the applicant stated that the army often killed innocent villagers.  Details of his story are set out in paragraph 9 of the Director’s Decision described below.

The Director’s Decision

6.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”). 

7.By Notice of Decision dated 27 March 2018, the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed if he returned to Pakistan was assessed to be low [21]; that state protection would be available to him [22]-[24] and that internal relocation was an option open to him [25]. 

The Board’s Decision

8.He appealed against the Director’s Decision to the Board and attended a hearing on 19 December 2019 with the assistance of an interpreter. 

9.The Board found that the applicant’s failure to take advantage of all the opportunities to claim non-refoulement protection was a behavior that was detrimental to his credibility [29]-[32].  The applicant accepted before the Board that there was no state or official involvement in relation to his private problem with Amanullah [37]-[38].  He also claimed that he was not a personal target of Indian Army but rather he was afraid of being randomly killed [39].  While the Board accepted that the applicant was publicly threatened by Amanullah, it refused to accept that Amanullah would harm or kill him upon his return and that, given he had left Pakistan for some 12 years, the chance of him being chased down by Amanullah was low.  Further, the Board found that Amanullah never hurt the applicant or that the applicant had ever approached the police for assistance [48].  As a result, the Board rejected his claim on the applicable grounds [50]-[77].  In any event, the Board found that internal relocation to Rawalpindi or Karachi was available to the applicant [79]-[83].  Thus, the Board dismissed his appeal. 

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 18 October 2021 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he stated that he was not satisfied with the Board’s Decision.  The Board did not make proper investigation into his claim and he was unable to produce documents to prove his case.  The Board’s Decision is therefore unjust and unfair.

DISCUSSION

12.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.  The delay is, of course, serious. However, I shall first consider the merits of the applicant’s case.

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

14.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.”

15.The Board had considered the facts of his case and come to its conclusion with reasons.  The applicant’s complaints are his opinions without any evidence in support of them. 

16.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.

17.There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 7^th day of December 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

[1] risk of torture under Part VII C of the Immigration Ordinance, Cap. 115