Malik Kamran v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1237/2020

[2022] HKCFI 1824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1237 of 2020

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.The applicant applies for leave to apply for judicial review of the Decision of the Director of Immigration dated 18 May 2018 (“the Director’s Decision”), which had been dealt with by a decision dated 2 April 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The Director’s Decision is not amenable to judicial review.[1]

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court has fixed a hearing for him.

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 came to Hong Kong as a visitor in March 2003. He overstayed and was arrested by police. He was referred to the Immigration Department where he lodged a torture claim, which was rejected by the Director. His petition against the Director’s decision was rejected by the Adjudicator (Torture Petitions) on 24 October 2011. He had committed a number of criminal offences and was charged, convicted and sentenced to imprisonment by the court. His last conviction was on a charge of trafficking/possession of dangerous drug and was sentenced to 5 years’ imprisonment in 2016. By written representations dated 11 April 2014 and 2 May 2014, he claimed non-refoulement protection on the basis that, if refouled, he would be killed by Sheikh Anwar Saced (“Sheikh”) and his fellows from the Pakistan People’s Party (“PPP”) because of his affiliation with the Pakistan Muslim League (Nawaz) (“PML(N)”).

5.According to the applicant, he was a member of PML(N) and Sheikh was a member of the PPP. He told the applicant to leave PML(N) and joined PPP. He refused. Sheikh threatened to kill him. He had been twice attacked by Sheikh and his people before he came to Hong Kong. He could not recall the time. On the first occasion, he was attacked by 10 people with wooden sticks. He had suffered injuries on his arm, back, thigh and eyebrows. He reported the matter to police, who took no investigation. The 2^nd attacked took place outside a restaurant where 3 to 4 people approached him and asked him if he agreed to leave his party and join the PPP. He refused whereupon they attacked him by pushing him. One of them took out a pistol and fired 3 shots at him. They missed. Police was alarmed and came to take them to the police station for the formality of registration of the case only. He believed that those people were sent by Sheikh and they meant to kill him. On the advice of his family, he left Pakistan for China, where he came to Hong Kong. [up to here]

The Director’s Decision

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

a.  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”);

b.  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

c.  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 Decision, the Director dismissed his claim on the basis that there were no substantial grounds for believing his perceived fear of harm was real and foreseeable for the reasons (i) the intensity and frequency of the past ill-treatment by Sheikh and his fellows from PPP were not high and significant [16]; (ii) the PPP was no longer the ruling party as it was replaced by the PML(N) [17]; (iii) after the shooting in the 2^nd incident, the applicant still returned to the locality where the incident took place [18]; (iv) state protection was available to him [19]; and the threats were localized and internal relocation alternatives were available and reasonable [20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. However, he lodged his notice of appeal late. The Board found that the Director’s Decision was given to him on 22 May 2018. The notice of appeal was required to be filed on or before 5 June 2018. The applicant filed the notice of appeal on 18 November 2019, around 17 months after the prescribed period for lodgement ended. [8-10].

9.Having considered all the information and circumstances of the case as summarized below, the Board was not satisfied that, by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal:

(1)  his immigration history;

(2)  his criminal records in Hong Kong;

(3)  details of his non-refoulement claim: the background, threats, attacks and detention incident in Pakistan, his assaults in Pakistan and his fleeing to Hong Kong, his current situation, state protection and internal relocation alternative; and

(4)  nature of his non-refoulement claims and the fact that the PPP is no longer the ruling party.

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

10.The applicant has filed Form 86 dated 19 June 2020 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant attached a statement of grounds as follows:

(1)  he believes that the Director and the Board are wrong in their decisions because they had not given due consideration to his right to life and the Board had not given him sufficient time and chance to arrange for evidence to support his appeal;

(2)  the Director had not considered the issue of state acquiescence as he had been ill-treated at the state law enforcement agencies;

(3)  although the Director had set out the country of origin information in support of his claim, he did not give weight to such information in his consideration; and

(4)  the Director did not take into consideration of the corruption and incompetency of the administration in his country in his decision.

DISCUSSION

12.The main issue for the Court is whether the Board’s decision of not extending time for the applicant to file his notice of appeal under the Ordinance was made in accordance with the law.

13.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).

14.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he is being detained in the detention centre of the Immigration Department. He wants some time to obtain documents from the police station in Pakistan. When asked what documents he wanted from Pakistan as the Board refused to extend time for him to file the notice of appeal, he was unable to give any answer.

15.The Court has also taken on board the decisions of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377:

“20. … … it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

16.It is obvious that the Board had taken the merits of the applicant’s case into account before it made its decision not to extend time for the applicant to file the notice of appeal.

17.Those grounds in support of his application above are mainly in relation to the Director’s Decision, which should be considered by the Board if he were allowed to appeal out of time. They are not valid reasons to challenge the Board’s Decision refusing to extend time for him to file the notice of appeal.

18.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.

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

CONCLUSION

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

Dated the 28^th day of June 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