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

HCAL 2096/2018

[2022] HKCFI 323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2096 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 23 June 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application filed on 3 October 2018 is late for about one year.  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 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.

The applicant

4.The applicant is a national of Pakistan.  He entered Hong Kong illegally on 11 May 2006.  On 31 July 2008, he was arrested by the Hong Kong police. On 6 October 2008, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by Tahir, Tayyab and followers who were members of Pakistan Muslim League (Nawaz Sharif) (“PMLN”) because of a monetary dispute.

5.According to the applicant, in around June 2004, the applicant intended to purchase some garment stocks.  He asked his friends Tahir and Tayyab to join him in injecting the capitals.  However, the business failed and he was unable to return money to Tahir and Tayyab.  Starting in around February 2005, Tahir and Tayyab began asking him to repay the loan. To resolve the disputes, the parties had four meetings, during which Tahir’s camp verbally abused the applicant and assaulted him with bare hands.  After the meetings, from January 2006 to March 2006, Tahir and the camp continued to harass the applicant.  They even filed a fake police report against the applicant.  In March 2006, he was attacked by two gangsters sent by Tahir and Tayyab.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his story are set out in paragraphs 5 to 29 of the Notice of Decision dated 24 August 2015 by the Director (“the Director’s First Decision”) and paragraph 18 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 rejected his claim on the grounds of Persecution risk, Torture risk and BOR3 risk 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 [36]-[49]; that state protection would be available to him [50]-[90] and that internal relocation was an option open to him [91]-[97].  With reasons stated in the Notice of Further Decision dated 13 February 2017 that there was no evidence to show that the applicant’s right to life would be violated, the Director also rejected his claim on BOR2 risk (“the Director’s Second Decision”).

8.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to as “the Director’s Decisions”. 

The Board’s Decision

9.The applicant appealed the Director’s Decisions to the Board.  The oral hearing for the applicant’s appeal was conducted on 17 February 2017, during which the applicant stated to the Board that he had nothing to add to his case [20].  

10.Having considered the applicant’s evidence, the Board dismissed his appeal.  The Board observed that some of the applicant’s evidence were illogical.  For example, he did not provide cogent explanation as to why he only lodged a non-refoulement claim after staying in Hong Kong for around 2.5 years.  He provided different versions as to how the two gangsters sought to locate him [22].  The Board also assessed the country of origin information and concluded that state protection was available to the applicant [26]-[28].  In assessing the individual grounds, the Board also considered that the applicant was not inflicted with severe pain or sufferings [28A].  In any event, internal relocation was available to the applicant [39]-[42].  Thus, the Board rejected his claim on all applicable grounds.

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 3 October 2021 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he stated that he was not satisfied with the Board’s Decision, which disregarded his dangerous situation.

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 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.The Board had considered the facts of his case and come to its conclusion with reasons. The applicant’s ground is only his opinion without any evidence to support it.

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 to show 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 28^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