Dost Imran v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 676/2019

[2022] HKCFI 2144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 676 of 2019

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 the Applicant to apply for leave to apply for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 27 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application filed on 11 March 2019 is late, the deadline being within 3 months after the Board’s Decision. 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 Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Pakistan.  He entered Hong Kong illegally on 22 October 2014.  He was arrested by the Hong Kong police on 31 October 2014.  On 2 November 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his parental uncle Yaqoob Hussain (“YH”) and YH’s sons due to a land dispute.

5.According to the applicant, YH was an active member of Pakistan Muslim League (Nawaz) (“PMLN”), the then ruling party in Pakistan.  He was also connected with the Member of National Assembly (“MNA”).  Since the applicant’s family was closer with his grandfather, they inherited the better part of the grandfather’s land.  In this light, YH resented such arrangement and wanted to kill the grandfather.  To protect their grandfather, the applicant’s elder brother was killed in the fight.  As the only male descendent left, the applicant feared that he would become the target and thus escaped.  After relocating to different villages where he was located by his cousins, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 9 November 2017 by the Director (the “Director’s Decision”) and paragraphs 9 to 26 of the Board’s Decision.

The Director’s Decision

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

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

(2)  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”);

(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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that he would not face any real or substantial risk of harm upon refoulement.  In elaboration, the Director found that (i) the applicant’s versions of event were illogical and, since YH and the cousins were merely ordinary members of PMLN and MNA, there was hardly any evidence of official involvements in this private dispute [11]-[14]; (ii) state protection would be available to him [15]; and (iii) internal relocation was also a viable option [16]-[17].  

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 4 July 2018, the Board conducted an oral hearing for his appeal. 

9.The Board considered the country of origin information (“COI”) on the PMLN, the Pakistan police, the judicial system and in-country movements and relocations [59]-[76].  It also weighed the applicant’s evidence against the COI.  The Board found that the applicant’s evidence lacked credibility.  In particular, there were inconsistencies in his versions of the gunshot incident [80]-[88].  He also gave contradictory accounts on the medical treatments he received and on the background of YH [89]-[93].  The Board further refused to entertain the applicant’s new ground as he failed to raise it despite given ample opportunities to do so [94]-[96]. 

10.For the individual grounds, the Board found that the alleged injuries were not inflicted by persons acting in the official capacities and that the applicant could access state protection [99];[107].  Meanwhile, on the applicant’s own evidence, YH’s influence was localized and thus internal relocation was plausible [110]-[111]. 

11.For these reasons, the Board rejected his claim and dismissed his appeal.    

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 11 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said his life is still dangerous in Pakistan. He cannot leave his pregnant wife and his kid here.

DISCUSSION

14.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.

15.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).

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

17.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.”

18.Those grounds raised by the applicant are not valid grounds to challenge the Board’s Decision. On the question whether the applicant is entitled to rely upon humanitarian or compassionate ground for his pregnant wife here, it is not clear whether his wife is a permanent resident of Hong Kong. However, even if his wife is a permanent resident of Hong Kong, the Court of Final Appeal in Comilang, Milagros Tecson & others v Director of Immigration [2019] HKCFA 10 held:

“90. …The Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the appellant mothers since such rights are disengaged by section 11. …”

19.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.

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

CONCLUSION

21.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 15^th day of July 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