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

HCAL 1452/2019

[2022] HKCFI 2134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1452 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
	cconsideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application 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 20 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”), which the applicant put down the date 24 January 2018. This error will be rectified below The applicant’s application, filed on 28 May 2019, is late as the deadline for the filing of the notice of appeal is within 3 months after the Board’s Decision.^[1] 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, the Director of Immigration (the “Director”) is the interested party and the date of the Board’s Decision is 20 December 2018 instead of 24 January 2018.

The applicant

4.The applicant is a national of Pakistan.  He entered Hong Kong illegally on 22 September 2006 and was arrested by the police on 5 October 2006.  On 20 October 2006, he raised a torture claim which was refused on 21 March 2013.  His application to reopen his torture claim was denied.  On 11 November 2013, he lodged a claim for Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”).  His CIDTP claim was assessed on all applicable grounds other than that on torture risk^[2].

5.The applicant based his claim on the fear that, if refouled, he would be harmed or killed by his enemy Imamia Student Organization (“ISO”) from the Shia sect.  The applicant belonged to another organization called Sunni Terek Force (“STF”) under the Ahley Sunnat sect.  The two organizations had disputes over the place of worship.  In 2006, the applicant was promoted to be the vice president of STF.  Thereafter, the people from ISO constantly threatened to kill the applicant.  In a gathering held in March or April 2006, the applicant was almost shot by four gunmen from the ISO.  The report of the shooting incident to the police was of no avail as they were biased against the STF. Nevertheless, the applicant claimed that the STF filed two false charges against him to revenge against the charges laid against the STF members for offences including possession of firearms.  As a result, the applicant was detained by the police for two weeks and he was verbally abused.  He also had to bribe for food.  After his release, he left for Lahore.  Eventually, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 8 of the Notice of Decision dated 24 January 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

(1)  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”);

(2)  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

(3)  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 the level of risk of harm was assessed to be low.  In elaboration, the Director found that (i) his alleged past ill-treatments failed to attain a minimum level of severity [22]; (ii) the threats from ISO was localized [23]; (iii) state protection would be available to him [24]-[27]; and (iv) internal relocation was a viable alternative [28]-[31].  

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 3 December 2018, the Board conducted an oral hearing for his appeal, during which he gave evidence [10]-[18].

9.Having considered the evidence, the Board made the following findings. First, the applicant failed to provide any documents to support the alleged false charges, which he claimed to be the center of his claim [19].  Secondly, the fact that he was able to depart through Lahore airport undermined his assertion that he was a wanted person [20].  Thirdly, even if the false charges were proved to be true, he would not subject to death sentence if refouled [21].  Fourthly, there was no evidence that the police would harm or even kill him [22].  Finally, on the applicant’s own evidence, he no longer feared a risk of harm from ISO [23].  In any event, internal relocation was available to the applicant [28]-[29].

10.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 28 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said he does not agree with the Board’s Decision. His life will be in danger if he returns to his country.

DISCUSSION

13.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.

14.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).

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

16.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.”

17.The applicant has not raised any valid ground to challenge the Board’s Decision.

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

CONCLUSION

20.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 26^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