Case Document

100%Judiciary

HCAL 1126/2022

[2023] HKCFI 715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1126 of 2022

BETWEEN
	Abdul Wahab	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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. 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.The applicant applies for leave to apply for judicial review of the Decision dated 26 November 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Third Decision”), in which the Board allowed the applicant to withdraw his non-refoulement claim. The application filed on 21 October 2022 is late. This issue will be dealt with 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 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 as a visitor on 14 November 2000 and was permitted to remain until 21 November 2000. However, he did not depart and had overstayed since 22 November 2000. On 13 January 2008, he was arrested by the police for overstaying. On 26 January 2008, he raised a torture claim. Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim and assessed on all applicable grounds. His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle and cousins.

5.According to the applicant, his dispute with his uncle and cousins arose out of a restaurant. The applicant’s late father used to operate the restaurant together with his uncle. From the applicant’s understandings, his uncle and cousins were politically influential and powerful as they were connected to the city administration staff or the police. On 14 July 1987, the applicant’s father passed away. As a result, the legal ownership of the restaurant was transferred to the applicant’s mother. Nevertheless, the applicant’s uncle seized the management of the restaurant and only gave the applicant’s family a small sum from the profit on a daily basis.

6.In 1988, the applicant sought to get back the business. After two years’ negotiations, his uncle agreed to let him operate a business of selling curry and bread within the restaurant. As the applicant made more profits, his uncle became jealous and demanded the applicant’s mother to add his name to the lease. Thereafter, the applicant’s uncle started to see him as a target and they constantly had minor disputes. In 1993, the government department had conspired with the applicant’s uncle to demolish the restaurant with an aim to restart a new one. Knowing this conspiracy, the applicant filed a court case against the relevant parties and obtained an interim order to continue operating the old restaurant before the final determination of the case. The applicant claimed that he had no updates of the court case as his brother was handling the matter.

7.One night on an unknown date, the applicant was arrested by the police when he greeted his friend at a game center. He was accused of gambling. In the police station, he was beaten and detained for three days. Two weeks after his arrest, he was told that the police arrested him under the influence of his cousins, Ishtiaq and Rafique.

8.Later on, the first incident occurred when the applicant attempted to intervene an argument between Ishtiaq and one of the applicant’s employees. During the argument, the applicant’s right leg was burnt by Ishtiaq’s iron bar. Two months after the first incident, the applicant was again assaulted by his cousins due to a dispute, in which his employee mistakenly took something belonging to his uncle. The applicant reported the assault to the police but there were no follow-ups.

9.To avoid the fights with his uncle and cousins, the applicant moved to Bahawalpur. During his stay in Bahawalpur, he was not approached by his uncle and cousins. However, his business in Bahawalpur failed and he decided to return home. He resumed work in the restaurant but was scolded and assaulted by his uncle and cousins.

10.Six months after his return from Bahawalpur, he had a dispute with his uncle and cousins over the payments of the electricity bills. He was again assaulted for 15 to 20 minutes. His report to the police was of no avail. His complaints to the city administrations was also in vain.

11.One night on an unknown date, the applicant was again arrested by the police. They informed him of a false case filed by his uncle and took him to the police station. The next day, the applicant was taken to the torture room and was beaten for confessions. He was released on the third day. For his wounds, he applied painkillers and got pills and received one or two injections from the doctor. The fourth and final incident happened after the applicant had an argument with his cousins at the restaurant. That night, on his way home after a movie, the applicant was kidnapped and attacked by some men. He received four or five stitches afterwards. The police officers again refused to register his complaint.

12.Out of fear, the applicant escaped to different cities and eventually fled to Hong Kong for protection. While he was in Hong Kong, he learnt that his brother, who was helping him in solving the disputes, was assaulted by his uncles and cousins. As the attempted settlement failed, the applicant decided to seek protection. Details of his claim are stated at paragraph 8 of the Notice of Decision dated 26 March 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

13.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”).

14.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) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]-[22]; (ii) his behaviors, such as his repeated returns to his home village, was not consistent with those of someone who genuinely feared a risk of harm [23]-[24]; (iii) state protection would be available to him [25]-[36]; and (iv) internal relocation was a viable option [37]-[44].

15.In the Notice of Further Decision dated 21 April 2017, the Director also found that the applicant’s right to life would not be violated upon refoulement and dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

16.On 9 April 2015, the applicant appealed against the Director’s First Decision. On 24 March 2016, the Board held an oral hearing for his appeal.

17.The Board recapped the applicant’s case. It considered the alleged injuries sustained in the assault incidents and found that they were not serious injuries [29]-[34]. It also found that the applicant’s repeated returns to his home village, despite that he could avoid the risk of ill-treatments by residing outside his home place, were inconsistent with someone who feared a risk of harm [35]-[40]. The Board further considered the country of origin information and found that state protection and internal relocation were both available [41]-[52].

18.In assessing the individual grounds, the Board found that his uncle and cousins were not acting in the official capacity nor under the consent of the Pakistan government [58]; and that it was only a personal and business dispute over the operation of the restaurant [66].

19.For the aforesaid reasons, in the decision dated 23 February 2017, the Board rejected the applicant’s claim on Torture risk, Persecution risk and BOR 3 risk and dismissed his appeal (the “Board’s First Decision”).

20.On 28 June 2017, the applicant filed his notice of appeal/petition to the Board against the Director’s Second Decision. On 5 November 2019, the applicant wrote to the Board that he wished to go back to his home country and thus decided to withdraw his non-refoulement claim.

21.By a letter dated 7 November 2019, the Board wrote to the applicant to acknowledge the receipt of the aforesaid letter. It also advised the applicant to seek independent legal advice on the consequences of the proposed withdrawal. In the end, it reminded the applicant to submit his reply on or before 14 November 2019, failing which the Board would consider approving his application for withdrawal.

22.On 26 November 2019, by the Board’s Third Decision, the Board wrote to the applicant and stated that, as it did not receive the applicant’s reply, it was satisfied that, after considering all available information, the applicant’s application to withdraw the notice of appeal/petition was freely sought and that he understood the consequences of the withdrawal. It also satisfied that there was a good reason for his withdrawal as he considered it safe for him to return to Pakistan. In these circumstances, the Board granted the applicant’s application for withdrawal. As a result, the applicant’s appeal/petition against the Director’s Second Decision was disposed of and finally determined by the Board.

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

23.The applicant has filed Form 86 dated 21 October 2022 for leave to apply for judicial review of the Board’s 3^rd Decision.

24.In his affirmation in support of his application, he did not state any specific ground.

DISCUSSION

25.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 26 February 2020. The delay is about 2 years and 8 months. 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.

26.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Third 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).

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

28.It seems clear that the applicant had, on his own volition after having been advised to take legal advice, decided to withdraw his appeal. The Board confirmed in the Board’s Third Decision that his appeal had been disposed of and finally determined by the Board and no further action would be taken by the Board in respect of his appeal. The question is whether the Board’s decision is correct.

29.The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, 13 June 2019 held:

“41. … …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … … s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder.”

30.The applicant’s withdrawal was a valid withdrawal of his appeal. The Board was correct to have made the Board’s Third Decision.

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

CONCLUSION

32.Therefore, I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Third Decision. Accordingly, I dismiss his application.

Dated the 28^th day of March 2023

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 28/3/2023 Abdul Wahab Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28/3/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1354/15/4/46/P422; BOR 801/17/6/118/P216 Director of Immigration Putative Interested Party’s ref. no.: RBCZ 9001147/17 (formerly QA T/C 808/08 Pt. 2 and RBCZ 459/08) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)