Ahmed Imtiaz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 693/2019

[2023] HKCFI 231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 693 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:

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 9 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s BOR 2 Decision”) dismissing his appeal against the Director’s refusal of his claim on BOR 2 risk. The application filed on 12 March 2019 is late. The deadline is 9 October 2018. The delay is about 1 year and 5 months. I shall deal with this issue below.

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.

The applicant

3.The applicant is a national of Pakistan.  He entered Hong Kong illegally on 4 October 2009 and was arrested by the police on the same date. On 8 October 2009, he raised a torture claim.  His torture claim was subsequently taken as a non-refoulement claim upon the commencement of unified screening mechanism.  He claimed that, if refouled, he would be harmed or killed by (i) Tanoli Sajjad, the leader of the Muslim Student Federation of the Pakistan Muslim League-Quaid-e-Azam (“MSF-Q”) and (ii) his creditors, Waqar Ali Shah and Hassan.

4.According to the applicant, he was a member of the Muslim Student Federation of the Pakistan Muslim League-Nawaz (“MSF-N”) which was the opponent of MSF-Q.  From 2001 to 2008, a dictator called Pervez Musharraf, a supporter of MSF-Q, became the president of Pakistan.  In 2003, together with his business partners, the applicant established a property business.  In April to May 2007, Sajjad approached him and asked him to join Sajjad’s business as the applicant had wider network of customers.  The applicant refused.  Later, he found out that Sajjad asked someone to change the titles of his land, leading to the loss and subsequent closure of his business.

5.The applicant complained to the police but the police refused to take any actions as Sajjad was influential and connected to Pervez.  In the end of 2007, the applicant and his business partners sought help from a local court. Yet, they failed.  One day, the applicant and his business partners went to their land and attempted to regain the ownership.  They got into a fight and were injured by some men holding wooden sticks.  The report of the attack to the police was again of no avail.

6.Since then, Sajjad had been threatening the applicant.  In around February or March 2009, Sajjad hit the applicant’s car and the applicant was injured.  Thereafter, the applicant went into hiding.  Meanwhile, the applicant also feared that he would be ill-treated by the creditors since he could no longer afford to repay their loans.  Out of fear, the applicant eventually fled to Hong Kong for protection.  While he ceased contact with Sajjad and the creditors, he still felt that his life would be in danger if refouled.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 April 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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

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

b.  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”);

c.  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

d.  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”).

8.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk.  In elaboration, the Director found that (i) Sajjad did not demonstrate a real intention to seriously harm or kill him and the dispute with the creditors was private in nature without parties or state involvement [12]; (ii) state protection would be available to him [13]; and (iii) internal relocation was a viable alternative [14].

9.In the Notice of Further Decision dated 29 March 2017, the Director found that the applicant’s right to life would not be violated if refouled and also rejected his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s First Decision

10.The applicant appealed the Director’s First Decision and the Director’s Second Decision respectively to the Board.

11.On 15 March 2016, the Board conducted an oral hearing for his appeal against the Director’s First Decision, during which he was assisted by an interpreter and clarified certain matters in his claim [11].

12.The Board recapped the applicant’s claim and his personal background [23]-[47], as well as considered his oral evidence [48]-[55].  Having evaluated all the evidence, the Board found that his claim lacked credibility [55].  In particular, the Board noted that the applicant provided contradictory evidence in relation to the attack and the injuries.  It also opined that, even taking the applicant’s evidence at its face value, the past experience did not amount to persecution nor did they concern any Conventional reason.  It found that the disputes were both private ones without state involvement.  In addition, while the system in Pakistan was imperfect, everyone there were subjected to the same system and the applicant was not personally targeted.  In these circumstances, the Board refused to accept that the applicant had established a fear of harm on any Conventional grounds [57].

13.In any event, the Board found that internal relocation was a viable alternative [58]-[63].  As a result, by way of the decision dated 14 February 2017, the Board rejected the applicant’s claim and dismissed his appeal against the Director’s First Decision (the “Board’s First Decision”). There is no application to pursue the Board’s First Decision further.

The Board’s BOR 2 Decision

14.Insofar as the applicant’s appeal against the Director’s Second Decision was concerned, after considering the documents, the Board concluded that it could fairly dispose of the appeal on paper as there were no new materials or additional facts that warranted an oral hearing [6].

15.Guided by the relevant legal principles governing the assessment of BOR 2 risk, and relying on the fact findings in the Board’s First Decision [12], the Board concluded that the applicant’s claim on BOR 2 risk was equally unsubstantiated and dismissed his appeal against the Director’s Second Decision.

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

16.The applicant has filed Form 86 dated 12 March 2019 for leave to apply for judicial review of the Board’s Second Decision.

17.In his affirmation in support of his application, the applicant said he was not satisfied with the Board’s Decision as his claim was not carefully considered. He said it is dangerous for him to return to Pakistan.

DISCUSSION

18.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.

19.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).

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

21.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.”

22.The Board had assessed his case and did not accept his evidence on the facts of his case. It found that he was unable to establish his claim on any of the Conventions. His reasons in paragraph 17 above are not valid to challenge the Board’s Decision.

23.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.

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

CONCLUSION

25.I refuse to extend time for the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss his application.

Dated the 31^st day of January 2023

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