Khan Muhammad Shawaiz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 694/2019 on BabelCite. This High Court CFI judgment was delivered on 2 September 2022.
1. The applicant applies for leave to apply for judicial review of the Decision dated 21 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”).
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HCAL 694/2019 [2022] HKCFI 2708 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 694 of 2019
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following;
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 dated 21 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”). 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 15 June 2014 and was arrested by the police for illegally remaining on 16 June 2014. On 30 December 2014, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the Pakistani police for a false murder case and by the family members of the victim. 5.According to the applicant, he was a Sunni Muslim and, on 15 November 2013, he attended a Friday prayer. On that date, there was a rally organized by Shia Muslims. The two groups clashed and, in self-defending himself, the applicant hit someone with a wooden stick. Later, he learnt that the Shia Muslims set fire on their mosque and one of his friends was killed. The day after the clash, the police visited his house and wanted to arrest him for suspected murder as the person he hit in the clash died. The victim’s family members also pressured the applicant’s family to turn him in. He then relocated to another village but heard about the shooting incident outside his family home. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraphs 7 to 28 of the Notice of Decision dated 31 August 2015 by the Director (the “Director’s First Decision”). The Director’s Decisions 6.The Director considered the applicant’s claim in relation to the following risks:
7.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk on the basis that the level of risk of harm was assessed to be low. In elaboration, the Director found that (i) there was no evidence showing that the Pakistani police had filed any false charge against him or the first initial report would cause any unfairness in the investigation against him [35]-[36]; (ii) there was no evidence showing that the victim’s family had ever contacted, or even threatened him [37]; (iii) state protection would be available to him [39]-[42]; and (iv) internal relocation was a viable alternative [43]-[46]. 8.In the Notice of Further Decision dated 18 October 2017, the Director also gave reasons for dismissing the applicant’s claim on BOR 2 risk as it was found that his right to life would not be violated if refouled (the “Director’s Second Decision”). The Board’s Decisions 9.The applicant first appealed the Director’s First Decision to the Board. However, the applicant failed to attend the scheduled oral hearing on 16 August 2016. After several failed attempts to contact the applicant, the Board issued a letter to the applicant’s last known address asking him to provide an explanation for the absence within 7 days. Nevertheless, the applicant failed to do so. On this premise, the Board proceeded to determine his claim on paper [4]. 10.Having considered the evidence, the Board made the following findings. First, the applicant’s alleged injuries failed to attain a sufficient level of severity [12]. Secondly, the injuries were not inflicted by the state actors [13]. Thirdly, after reviewing the country of origin information, the Board considered that internal relocation was viable for the applicant [16]-[21]. Independently, the Board found that the applicant’s claim lacked credibility as his delay in seeking protection in Hong Kong further undermined the truthfulness of his claim, which was already found to contain bare assertions [33]-[35]. For these reasons, the Board rejected his claim on Torture risk, BOR 3 risk and Persecution risk and dismissed his appeal against the Director’s First Decision. 11.On 23 February 2018, the applicant filed his notice of appeal/petition against the Director’s Second Decision, which was late by nearly 4 months [3]. 12.The Board considered his explanation of an elbow injury and rejected on the basis that he did not provide any medical reports in support and that he did not elaborate why the alleged elbow injury would prevent him from lodging the appeal on time [5]. It also rejected the applicant’s reason of psychological or psychiatric disability affecting his memory as he could not explain why he would only recall after four months [6]. 13.On the basis of lack of reasonable excuses for the delay, the Board, by its Second Decision, refused to exercise its discretion in allowing the late filing. Application for leave to apply for judicial review of the Board’s Decision 14.The applicant has filed Form 86 dated 12 March 2019 for leave to apply for judicial review of the Board’s Decision. 15.In his affirmation in support of his application, the applicant enclosed the Director’s Decisions without setting out any ground. DISCUSSION 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.This issue in question is whether the Board was entitled under the law not to extend time for the applicant to file his notice of appeal against the Board’s Second Decision. Viewed from the facts as stated on the Director’s Second Decision, it is clear that the Board was justified not to extend time for the applicant to file his notice of appeal late. 19.There is no valid reason to challenge the Board’s Second Decision. 20.The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational. 21.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review. CONCLUSION 22.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss his application. Dated the 2nd day of September 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
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