Mahmood Asjad v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2338/2018

[2022] HKCFI 1437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2338 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:

1.  Extension of time for application for leave to apply for Judicial Review be refused; and

2.  Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 August 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant’s application filed on 24 October 2018 is late, the deadline being 18 November 2017. I shall deal with this issue below.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 30 November 2013 and was arrested by the police on the same date. On 5 December 2013, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Syed Ijaz Sherazi (“Syed”).

5.According to the applicant, he became a supporter of Pakistan People’s Party (“PPP”) under his family’s influence and assisted the PPP in the general election in 2013. Syed was a supporter of Pakistan Muslim League (N) (“PMLN”) which was the contestant of PPP in the general election. In around March 2013, Syed and PMLN members threatened and attacked the applicant for his refusal to join the PMLN. He sustained injuries and received medical treatments. Thereafter, the applicant escaped to other villages where he was informed by his father that Syed was still looking for him. Eventually, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 8 March 2016 by the Director (the “Director’s First Decision”) and paragraphs 25 to 37 of the Board’s Decision as described below.

The Director’s Decisions

6.The Director considered the applicant’s claim 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.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Notice of Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, Persecution risk and BOR3 risk. The Director found that the level of risk of harm from Syed upon 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 [13]-[15]; (ii) state protection would be available to him [16]; (iii) internal relocation was a viable alternative [17]-[21]; and (iv) the applicant’s behaviors as revealed in the immigration history were inconsistent with someone who genuinely sought an international protection [22]-[23].

8.In the Notice of Further Decision dated 9 February 2017, the Director set out the reason for dismissing the applicant’s claim under BOR2 risk (the “Director’s Second Decision”) that there was no evidence to show that his right to life under BOR2 would be violated upon his return.

9.For simplicity, the Director’s Notice of Decision and the Director’s Notice of Further Decision will be referred to as the “Director’s Decisions”.

The Board’s Decision

10.The applicant appealed the Director’s Decisions to the Board. The Board considered the applicant’s grounds of appeal [4]. On 9 May 2017, the applicant appeared before the Board with the assistance of an interpreter [5].

11.Having considered the applicant’s evidence, the Board found that his claim was implausible. Before the Board, the applicant confirmed that he had not encountered any threats from other PMLN members except for Syed [38]. It was therefore a private dispute with Syed. Moreover, the applicant stated that he did not act differently even after being threatened by Syed [39]. The Board also cast doubt as to his conducts after the alleged assault [40]-[41]. Further, in assessing the applicant’s credibility, the Board found that he was exaggerating as to being a target of PMLN [45]-[52]; that his own conduct and evidence had undermined his assertion that he would be in danger if refouled [53]-[54]; and that the country of origin information did not support the applicant’s assertion of state acquiescence [55]-[60].

12.For the aforesaid reasons, the Board dismissed the applicant’s assertion that he would face any real risk of harm from Syed if refouled [61]-[63]. In any event, the Board found that internal relocation to Gilgit city was not unreasonable to the applicant [64]-[74]. Thus, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

13.The applicant has filed Form 86 dated 24 October 2018 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant has set out the grounds, which can be summarized below:

(1)  failure to consider the extended form of state acquiescence;

(2)  failure to consider the Country of Origin information (“COI”);

(3)  irregularity: the adjudicator was not the immigration officer; failure to place weight on relevant information and/or selectively placing weight on irrelevant information; failure to consider a consistent system of human right violation; failure to consider if state protection exists in Pakistan; and

(4)  procedural impropriety: failing to call for psychological and/or psychiatric report for evaluation; applying the wrong standard of proof; no reasonable basis for rejecting his credibility.

DISCUSSION

15.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.

16.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

18.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.”

19.Those grounds in support of his application do not assist him. Grounds (1) and (2) fail as the Board had considered state protection and the COI. Furthermore, the facts of his case do not involve the issue of state acquiescence. Ground (3) fails because the adjudicator is dealing with his appeal from the decision of the immigration officer and therefore, he has to be a different person. The other issues are only his opinions or comments without any evidence in support. Ground (4) also fails because the issue of psychological or psychiatric issues were never brought to the Board’s attention for consideration.

20.The Board has given reasons for its Decision. The applicant has not been able to raise any valid ground to challenge the Board’s Decision.

21.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.

22.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

23.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 19^th day of May 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