Ahmad Ashfaq v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3355/2019

[2022] HKCFI 3339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3355 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 oral submissions by counsel for the Applicant 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.The applicant applies for leave to apply for judicial review of the Decision dated 29 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 11 November 2019 is late.[1] The deadline for the application is 29 July. The delay is 3 months 13 days. I shall deal with this issue below.

2.The applicant requested an oral hearing and a hearing was fixed before the Court on 29 September 2022. On the day of hearing, Counsel for the applicant informed the Court that the applicant had not been in contact with his instructing solicitor for a long time. He therefore applied for leave for discharge of the solicitors acting for the applicant. Leave was granted and the application is therefore dealt with on paper. As the applicant was not legally represented, there shall be no order as to costs for this application.

The applicant

3.The applicant is a national of Pakistan. He entered Hong Kong illegally on 18 May 2007[2] and was arrested by the Hong Kong police on 19 March 2009. He had previously made a torture claim which was rejected by the Immigration Department. The subsequent petition to the refusal was dismissed by the Board on 28 September 2010. On 28 September 2014 and 6 October 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 father of Shahzaib Butt because he thought the applicant was responsible for Butt’s death.

4.In brevity, the applicant and Butt celebrated national day together in Lahore on 23 March 2007. Butt drove him around the city. Unfortunately, their motorcycle hit something and Butt lost control. The applicant fell off and got injured. He found out that Butt was dead. Scared, the applicant fled the scene. The applicant’s father required him to be treated in a hospital and later informed him of Butt’s father who held him liable for Butt’s death, and had been looking for him and threatening to kill him. As Butt’s father was powerful and influential, out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 11 October 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the absence of past ill-treatments indicated an unlikelihood of future risk of harm [15]-[17]; (ii) state protection would be available to him [18]-[24]; and (iii) internal relocation was a viable alternative [25]-[30].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 3 April 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [6].

8.The Board recapped the applicant’s claim and his personal background [21]-[45]. It noted that the crux of the applicant’s claim was that Butt’s father blamed him for Butt’s death in the traffic incident [46]. Yet, the Board identified the significant deficiencies in his claim which were not satisfactorily explained. In particular, the Board found that he provided shifting accounts as to when the accident occurred; how he left the scene; how long he stayed in the hospital; and whether the police tried to locate him. It also rejected the submitted FIR on the bases that (i) the practice of document fraud was widespread in Pakistan; (ii) the said documents contained information contradictory to what the applicant claimed; and (iii) the document was produced just before the interview before the Director, namely, in September 2017 but the FIR was made on the date of the alleged incident, i.e., in 2007 [49]-[53].

9.In light of the aforesaid, the Board concluded that the applicant’s claim lacked credibility and thus dismissed his appeal.

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

10.The applicant has filed Form 86 dated 11 November 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he did not raise any ground.

DISCUSSION

12.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 29 July 2019. The delay is serious. He has given no explanation for his delay and his application can be dismissed on this basis alone. However, I shall first consider the merits of the applicant’s case.

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 Decision should be examined with rigorous examination and anxious scrutiny.

15.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.”

16.There is no valid reason to challenge the Board’s Decision.

17.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.

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

CONCLUSION

19.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 7^th day of November 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