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

HCAL 54/2022

[2022] HKCFI 692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 54 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 6 December 2021.  In his supporting affirmation, he averred:

“I am aggrieved by the decision of both the Immigration Department and the Torture Claims Appeal Board, attach Exhibit ‘A’ in ruling that my claim is not substantiated.”

Exhibit ‘A’ is a statement of grounds on which the relief is sought, but not copies of the decision of the Immigration Department or the Board as what his averment suggested they are.

.

2.The Applicant has not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Background

3.As a result of the Court’s enquiry with the Immigration Department, the Court obtained copies of three notice of decision from the Director of Immigration (the “Director”) relating to the Applicant dated 26 September 2014 (the “2014 Notice”), 4 January 2017 (the “2017 Notice”) and 21 April 2021 (the “2021 Notice”).

4.In response to the Court’s enquiry with the Board, the Board replied by a letter dated 4 February 2022 that as of that date it has no record of the Applicant having filed any appeal/petition against non-refoulement claim decision(s) with the Board.  This letter conclusively proved that the decision in respect of which the Applicant seeks judicial review is fictitious.

5.The applicant is a Pakistani national.  He was arrested by the police on 31 October 2009 for being an illegal immigrant in Hong Kong.  He allegedly sneaked into Hong Kong from the Mainland by boat on 31 October 2009.  He then made a non-refoulement claim under article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by a written representation dated 4 November 2009 claiming that he will be tortured or even killed by his neighbour because of a land dispute, if refouled to Pakistan.

6.In due course, his non-refoulement claims were assessed on three applicable grounds then available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3]. On 26 September 2014, the Director rejected his claim by the 2014 Notice.  In the notice, he was advised to appeal to the Board within 14 days from the date of the notice, if he is aggrieved by the decision.  He was provided the address of the Board and a copy of notice of appeal.  He did not appeal.  The decision in the 2014 Notice is therefore final.

7.On 27 October 2016, the Director invited the Applicant to submit on or before 10 November 2016 additional facts, in particular those relevant to BOR 2 Risk[4] ground, which he might have omitted due to any misunderstanding. The Applicant did not respond. By the 2017 Notice, the Director also rejected his application for protection under BOR 2 Risk ground.   He was similarly advised of his right to appeal to the Board, but he did not appeal.  The decision in the 2017 Notice is therefore final.

8.After almost four years, the Applicant requested for making a subsequent claim for non-refoulement protection by letters dated 27 and 30 November and 2 December 2020.  His request was refused by Director’s 2021 Notice.

9.The Applicant now seeks to apply for judicial review of a fictitious decision of the Board dated 6 December 2021 which never existed.  After filing his Form 86, he wrote to the Court by a letter dated 18 January 2022 requesting for a copy of his “JR Letter” for the purpose of showing to the Immigration Department that he has an on-going judicial review proceedings in the High Court.  He was advised of the procedure but took no follow up action.

Discussion and conclusion  

10.The Board’s letter dated 4 February 2022 conclusively proved that the decision in respect which the Applicant seeks judicial review is fictitious and does not exist.  It is also amply clear from the 2014 Notice and 2017 Notice that if the Applicant wishes to challenge the decision in the notice, he has to appeal to the Board within 14 days of the date of the notice.  He is therefore aware of the appellate procedures but he chose not to invoke them. 

11.Now, nine months after the 2021 Notice was issued by the Director, he seeks to apply for judicial review of a fictitious decision allegedly made by the Board.  This is a clear abuse of proceedings.  The application is not bona fide made but for other ulterior motive, probably to delay his refoulement.  The application is hereby dismissed.

Dated 31^st day of March 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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383