Iqbal Javed v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2049/2018

[2022] HKCFI 159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2049 of 2018

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:

Extension of time for the application for Judicial Review be refused &

the application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decisions dated 28 December 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application filed on 27 September 2018 is late for more than 9 months.  I shall deal with this issue below.

2.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), Form 86 is amended to the effect that the proposed respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) and the interested party is the Director of Immigration (the “Director”).

3.He did not request 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.

The applicant

4.The applicant is a national of Pakistan.  He last entered Hong Kong on 11 June 2006 and surrendered to the Immigration Department on 10 January 2008.  Initially, he lodged a refugee application with the UNHCR on 12 June 2006 and, thereafter, a removal order was made against him on 19 February 2008.  He did not appeal against the removal order but continued to stay in Hong Kong for the outcome of his refugee claim.  Later, he lodged a torture claim with the Immigration Department on 17 November 2010 which was taken as a non-refoulement claim upon the commencement of the unified screening mechanism.    

5.The applicant claimed that, if refouled, he would be harmed or killed by the Sunni people because of his religion as a Shiya.  He also feared that he would be harmed or killed by his brother-in-law Asif because he had remarried to an Indonesian woman in Hong Kong.  According to the applicant, as a Shiya, he had been subject to the threats and troubles from Sunni people since birth.  Thus, he decided to come to Hong Kong in 1998 to avoid these threats.  In 2001, when he was deported back to Pakistan, he was arrested by the local police for religious gatherings.  He claimed to encounter a bomb attack in 2004 but he did not sustain any injuries.  However, due to a general sense of insecurity, he fled to Hong Kong for protection.  Thereafter, while he was in Hong Kong, he married an Indonesian woman in 2008.  Asif knew about his marriage in Hong Kong and posed death threats to him.  Details of his story are set out in paragraph 16 of the Notice of Decision dated 29 June 2015 by the Director (“Director’s First Decision) and paragraphs 14 to 21 of the Board’s Decision described below.

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 the Director’s First Decision, the Director refused his claim for the reason that his claim was not substantiated.  It is pertinent to note that the Director had scheduled the screening interview for the applicant.  However, there were multiple reschedules and cancellations due to the applicant’s alleged health problem.  Yet, the applicant’s medical evidence was not to the satisfaction of the Director.  Eventually, 16 months lapsed since the Director commenced the screening interview for the applicant’s non-refoulement claim.  As the applicant also failed repeatedly to provide requisite evidence, the Director informed the applicant that his claim would be assessed based on the available documents [5]-[14]. 

8.The Director found that the level of risk of him being harmed or killed if he returned to Pakistan was assessed to be low [22]-[24]; that state protection would be available to him [25] and that internal relocation was an option open to him [26].  Further, the Director also refused his claim on the basis of lack of credibility [27].  In the Notice of Further Decision dated 3 November 2016 (“the Director’s Second Decision”), the Director also dismissed the applicant’s claim on BOR2 risk for the reason that there was no evidence to show that he would be subjected to violation of his right to life upon his return to his home country.  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

The Board’s Decision

9.He appealed the Director’s Decisions to the Board and attended a hearing on 12 January 2017, during which he answered the Board’s inquiries.

10.The Board found that the applicant was not personally targeted by the Sunnis; that the applicant’s application for voluntary repatriation to Pakistan in 2001 further undermined his claimed risk of harms; that the applicant’s procrastination in lodging his non-refoulement claim was inconsistent with someone genuinely seeking for protection; that there was no evidence that the applicant was harmed or personally targeted by the Sunnis; and that the allegation against Asif remained a bare assertion without evidential support [37]-[41].  The Board also found that internal relocation was available to the applicant [43].  As a result, the Board rejected the applicant’s claim on all applicable grounds and dismissed his appeal [46]-[54].  

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 27 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he attached the Board’s Decision without specifying any grounds in support of his application.

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.  The delay is, of course, serious. However, 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(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.”

16.He does not have any valid ground to challenge the Board’s Decision.

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 realistic prospect 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 14^th day of January 2022

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