Ashiq Hussain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1128/2017

[2022] HKCFI 618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1128 OF 2017

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D E C I S I O N

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1.The Applicant is a 47-year-old national of Pakistan who entered Hong Kong illegally on 18 April 2014 and was arrested by police on 1 May 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his creditor over his outstanding loan. For his claim before the Immigration Department, the Applicant was given legal representation from the Duty Lawyer Service (“DLS”).

2.By a Notice of Decision dated 25 February 2016 and a subsequent Notice of Further Decision dated 24 November 2016, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

3.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor upon his return to Pakistan as low as it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Pakistan away from his home district in large cities where it would be difficult if not impossible for his creditor to locate him.

4.On 7 December 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s first decision of 25 February 2016, but as it was filed outside the prescribed time-limit of 14 days by Section 37ZS(1) of the Immigration Ordinance, the Board in pursuance of Section 37ZT(2) of the Ordinance proceeded to determine by a preliminary decision without a hearing whether to allow such late filing, and by a written notice dated 12 December 2017 the Board refused to allow the late filing upon finding that the delay had been substantial and that there were no special circumstances that would make it unjust not to allow the late filing of the Applicant’s appeal.

5.The Applicant then sought leave from the Court on 21 December 2017 to apply for judicial review of the Board’s decision, and on 29 May 2018 Deputy High Court Judge Josiah Lam found no effective challenge from the Applicant against the Director’s first decision of 25 February 2016, but granted leave for him to apply for judicial review of the further decision of the Director of 24 November 2016 as an appeal to the Board would not have been out of time as regard this further decision.

6.Accordingly, the Applicant issued his originating summons on 13 August 2018 through his then solicitors assigned by the Legal Aid Department, and served a copy thereof together with the relevant documents on the Director as interested party.

7.On 15 April 2019 the Director filed an application to set aside the leave so granted by DHCJ Josiah Lam on the ground that the Applicant had never brought any appeal to the Board against the further decision of 24 November 2016, and hence there was no basis for leave to be granted to him to apply for judicial review to challenge the further decision.

8.On 20 September 2019 by a consent summons signed by the Director and the Applicant’s solicitors, the parties jointly applied to set aside the leave so granted, and on the same day DHCJ Josiah Lam made an order in terms of the consent summons, and as a result the leave so granted to the Applicant was set aside.

9.Some 8 months later on 19 May 2020, the Applicant then acting in person issued a summons for leave to appeal against the consent order of 20 September 2019 under Section 14(3)(e) of the High Court Ordinance, Cap. 4 which provides that an appeal against a consent order cannot be brought unless with leave of the Court. 

10.In his supporting affirmation of the same date, the Applicant claimed that he could not return to Pakistan because his life would still be in danger, that he had wanted to continue with his application for judicial review, and that he did not know why his case had been withdrawn.

11.On 10 July 2020 the Applicant came before this Court for the hearing of his summons which was opposed by the Director represented by Mr Sunny Li, Senior Government Counsel of the Department of Justice, but during the hearing the Applicant decided to withdraw his summons, and accordingly leave was granted for him to do so. The order was subsequently sealed on 12 August 2020 and served on the Applicant on the same day.

12.On 25 August 2020 the Applicant then filed a notice of appeal against that order of 10 July 2020, with his stated grounds of appeal being that the decisions of the Director and the Board were unlawful as they failed to take into account many things and issues, and that he could not return to Pakistan as his life would be in danger there.

13.The appeal was dismissed by the Court of Appeal on 3 May 2021 upon finding that it was incompetent and liable to be struck out, and that it was an abuse of process for the Applicant to try to revisit the earlier consent order of 20 September 2019 after having subsequently withdrawn his leave application on 10 July 2020, and for which the Applicant was also ordered to pay the costs of the Director (CACV 406/2020 [2021] HKCA 557).

14.On 17 May 2021 the Applicant then filed a notice of motion for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision, and on 5 July 2021 his leave application was refused by the Court of Appeal upon finding that he had wholly failed to engage any of the reasons given in that decision for dismissing his appeal, nor was there any question of great general or public importance or which otherwise ought to be submitted to the Court of Final Appeal for determination.

15.Some 5 months later on 21 December 2021, the Applicant issued a summons now before me again for leave to appeal against the said order of 10 July 2020 (which the Applicant dated at 12 August 2020 which was as noted above the date when the order was sealed), and in his supporting affirmation of the same date he merely repeated his claim as before that his life is still in danger in Pakistan, and that he wants to re-open his case, and of which he also repeated at the hearing of his summons but again without disclosing anything in the said order against which that he could bring an appeal.  

16.In the premises, and given the fact that this is the second time that the Applicant has tried to revisit the consent order of 20 September 2019, of which the Court of Appeal as noted above on the first occasion already found to be an abuse of process, and hence this application is clearly another such abuse by the Applicant. Accordingly, his summons is hereby struck out and dismissed.     

The Applicant appeared in person

Mr Sunny Li, Senior Government Counsel of the Department of Justice,

for the Interested Party

The attendance of the Respondent was excused