Abbas Nazar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2219/2018

[2022] HKCFI 1141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2219 of 2018

BETWEEN

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 Decision dated 14 May 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application filed on 12 October 2018 is late. 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 RHC, Form 86 is amended to the effect that the Board is the proposed respondent and 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 17 August 2009 and was arrested on the same day.  On 20 August 2009, he lodged a torture claim which was later taken as a non-refoulement claim and assessed on all applicable grounds.  His claim was made on the basis that, if refouled, he would be harmed or killed by some extreme Muslim members.

5.According to the applicant, his family were devoted parts of Shia sect of Islam religion.  His father was the founder of Gill Chahill Imam Bargah (“GCIB”).  The Imam Bargah was used for annual function.  Among the Islam religion, there were different sects which were enemies against each other.  As the Shia sect normally practiced peace and harmony, the applicant joined several volunteer’s organizations.  He was appointed by his father to be the security of GCIB in around 2000.  On 1 October 2004, the Shia sect held a large event in Zambia Imam Bargha where some renowned people of Shia sect attended and gave speeches.  Nevertheless, a suicide bombing took place, causing deaths and injuries.  The people of Shia sect believed it was orchestrated by enemy’s sects. 

6.The applicant also claimed that, in around 2000, he was appointed the vice president of Jafaria Student Organization (“JSO”) where he made proposals to improve the community.  On 22 January 2008, the applicant was shot by members of the enemy’s sects outside GCIB and received medical treatments. Their report to the police was of no avail and the applicant confirmed that he did not know the attackers but he only had the religious enemies.  Fearful for the attack, the applicant relocated to several cities from March 2008 to February 2009.  However, his enemies still looked for him.  The applicant then fled to Dubai but returned to his home village on 13 March 2009.  On 28 March 2009, the applicant encountered the second attack in which he was injured by three unknown people with a dart.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his claim were set out at paragraphs 8 to 36 of the Notice of Decision dated 8 July 2016 by the Director (the “Director’s First Decision”) and paragraph 12 of the Board’s Decision as described below.     

The Director’s Decisions

7.The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)   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

(4)   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”).

8.By the Director’s First Decision, the Director refused his claim on the grounds of Torture risk, BOR3 risk and Persecution risk.  The Director found that the level of risk of harm upon the applicant’s refoulement was assessed to be low because (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [52]-[70]; (ii) state protection would be available to him [71]-[110]; and (iii) internal relocation was also a viable option for him [111]-[117]. 

9.On 28 June 2017, for reasons set out in the Notice of Further Decision that there was no evidence to show that the applicant’s right to life would be violated upon his return, the Director also rejected the applicant’s claim on BOR2 risk (“the Director’s Second Decision”).

10.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

11.The applicant appealed the Director’s Decisions to the Board.  The Board scheduled an oral hearing on 11 April 2018 for his appeal. 

12.The Board noticed that the applicant gave contradictory evidence as to why he obtained a passport, leading to doubts on whether he escaped because of the claimed fear [13]-[19].  The Board then considered the country of origin information (“COI”) and the applicant’s evidence in relation to his involvement with the Shia organizations [20]-[74].  In particular, the Board noted that the applicant provided inconsistent accounts for the details of his involvement with these organizations.  His evidence was also inconsistent with COI and the applicant failed give cogent explanations.  As a result, the Board refused to accept that the applicant had joined the claimed Shia organizations and that he was personally targeted by the enemy’s sects [71]-[74].

13.Insofar as the suicide bombing in the Shia mosque in 2014 was concerned, the Board accepted that the incident happened [75].  Nevertheless, the Board observed that the applicant failed to provide details as to the circumstances surrounding the incident.  Some of his evidence were inherently inconsistent and some did not sit well with objective evidence and common sense [75]-[96]. Thus, it doubted that the applicant was present at the scene or near the mosque when the incident happened.  The Board also assessed the applicant’s evidence on the 2008 shooting incident.  It found that the applicant’s oral evidence appeared to be rehearsed and he could not provide details beyond those in his non-refoulement claim form.  It considered that the applicant should at least provide generally consistent evidence in light of the significance of being shot by a rifle.  The documents submitted by the applicant also failed to support his claim of being shot [97]-[117].  All in all, the Board found his evidence to be problematic and untruthful. 

14.Viewing the evidence in totality, the Board concluded that the applicant had failed to establish a claimed fear of harm [120].  Further, the Board found that, based on the COI, state protection and internal relocation were available to the applicant [121]-[131]. 

15.For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.     

Application for leave to apply for judicial review

16.The applicant filed Form 86 on 12 October 2018 for leave to apply for judicial review of the Board’s Decision.

17.In his affirmation in support of his application, he said he had contact with his family and learned from them that his enemies were still looking for him.

DISCUSSION

18.As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

19.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

21.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.”

22.For reasons given by the Board, the Board rejected the applicant’s factual evidence. The applicant has not raised any valid ground to challenge the Board’s Decision.

23.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.

24.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 29^th day of April 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