Mushtaq Imran Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 457/2022

[2023] HKCFI 1394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 457 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 10 June 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 15 September 2017 (the “Decision”) dismissing his appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 April 2015 (the “2015 Notice”) and Notice of Further Decision dated 6 December 2016 (the “2016 Notice”). 

2.The Applicant is a Pakistani national, now aged 41.  He first arrived in Hong Kong as a visitor under the identity of “Imran Ali Mushtaq” on 3 May 2001. He was subsequently arrested by the police on 17 August 2001 for overstaying. He was given a suspended sentence on 3 September 2001 and then repatriated to Pakistan on 14 September 2001.

3.He entered Hong Kong again on 13 November 2002 from Mainland China under the identity of “Ali Imran” and was permitted entry and stay as a visitor until 27 November 2002.  On 10 December 2002, he was arrested for overstaying.  Upon investigation by the Immigration Department, he admitted that the previous identity used by him in 2001 is his true identity.  He was once again repatriated to Pakistan on 22 January 2003.  

4.He was arrested again on 4 October 2009.  He claimed he entered Hong Kong illegally via Mainland China on 29 September 2009.  He made a torture claim under the Convention Against Torture and Other Cruel or Degrading Treatment or Punishment by way of written representation, which was received by the Director on 13 October 2009 (the “Torture Claim”).  His Torture Claim was rejected by the Director on 23 November 2010.  His appeal to the Petition Team of the Security Bureau was dismissed on 30 December 2010 on a paper review.   That determination became final.

5.On 28 July 2011, he made a claim of refugee status for non-refoulement protection to the United Nations High Commissioner for Refugees (“UNHCR”).  After his claim was closed by UNHCR, he lodged his claim for non-refoulement protection by way of way of written representation dated 19 April 2013.  Upon implementation of the Unified Screening Mechanism (the “USM”), his claim was assessed on the two applicable grounds then available under the USM, namely, BOR 3 Risk[1]; and Persecution Risk[2]. His claim was dismissed by the Director in the 2015 Notice.

6.On 18 November 2016, the Director invited the Applicant to submit on or before 2 December 2016 additional facts, in particular those relevant to BOR 2 Risk[3] ground, which he might have omitted due to any misunderstanding.  The Applicant did not respond.  By the 2016 Notice, the Director rejected his application for protection under BOR 2 Risk ground.  The Applicant’s appeal against these two Notices were dismissed by the Board’s Decision on 15 September 2017.  He now seeks leave to apply for judicial review of the Board’s Decision.

Application for adjournment

7.In the course of his submission, the Applicant asked for an adjournment pending his legal aid application and to enable him to obtain documents from Pakistan to support his claim.  He had actually made such a request by letter dated 19 February 2023 but received by the Registry on 22 February 2023.  To partially accommodate his request, the Court re-scheduled the hearing originally fixed on 3 April 2023 to 20 April 2023, allowing him a stay of 61 days which is far in excess of the usual 42 days’ legal aid stay.  However, it was not until 23 March 2023 that the Court received the Memorandum from the Director of Legal Aid dated 21 March 2023 notifying the Court of his legal aid application.  The Applicant made his leave application in June 2022, but did not make his legal aid application at about the same time.  He informed the Court on 19 February 2023 that he had applied for legal aid, but in fact he had not until more than a month later.  The Court understood that he may occasion some delay because he was in custody and had therefore built in a stay of 61 days to allow for his legal aid application.  His conduct carries the hallmark of deliberately delaying the proceedings.  Notwithstanding section 15 of the Legal Aid Ordinance, the Court proceeded with the hearing.

8.As for his request for adjournment to enable him to obtain documents from Pakistan, he was unable to provide particulars and could not explain why he could not have obtained those documents during the 22 years he has been in Hong Kong.  His application was not made in good faith and was refused.

Delay in making the leave application

9.The leave application was made almost 4 years and 9 months after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it is almost four and half years out of time.  Leave to file the leave application out of time is required.  In AW and Director of Immigration and William Lam[4], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time:

(1) length of the delay;

(2) explanation for the delay;

(3) merits of the substantive application;

(4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and

(5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. 

10.Merits is usually a very important factor.  Where the delay is not very substantial, merits is usually the determinant factor.  But it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[5] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. 

11.The explanation for the delay offered by the Applicant at the hearing is that he had never received the Decision and it was only until about two weeks before he filed the leave application that he was informed by an immigration officer about the outcome of his appeal before the Board.  He was asked to disclose all his addresses between 2017 when the Board’s Decision was made and 2022 when he made his leave application.  He gave three incomplete addresses, one of which was in Hong Fung Building in Yuen Long where he said he lived between 2017 and 2019.  He said he had informed the Board of his change of address.  His explanation is made up of his bare assertions, which is incapable of being verified.  It is also inherently improbable.  Why would an immigration officer all out of the blue ask him about his appeal four years and nine months after the Decision was issued and not when he next reported his recognizance after the Immigration Department was informed of the outcome of the appeal?  As against his bare assertion, the posting of the Decision by the secretariat of the Board and delivery by Hong Kong Post which were carried out by public employees under a public duty is strongly credible.  The Court rejected his explanation as incredible.  The delay in this case is so substantial and unexplained that leave to apply for judicial review may be refused on this ground alone.  Lest any matters of significance might have gone amiss, the Court proceeded to assess the prospect of success in his proposed judicial review.

The Applicant’s case

12.The following account of the Applicant’s case is mainly based on the information in the Non-refoulement Claim Form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In summary, he claimed that he will be harmed or killed if he is returned to Pakistan by members of the Pakistan Muslim League – Nawaz (“PML-N’) because of his support for the opponent party, Pakistan Muslim League – Quaid-e-Azam (“PML-Q”).

13.The Applicant was raised in Punjab in Pakistan. He received 10 years of education and has working experiencing in his family’s business in importing and exporting vegetables.

14.He claimed he had joined the PML-Q, but had not been registered as a member or issued a membership card.  He had no position in the party.  He participated in voluntary work in running the office of PML-Q and assisting his cousin from 2003 to 2008 in meetings and in running for election for the post of Nazim.  He claimed that in general, supporters and members of PML-Q often became involved in verbal arguments with PML-N members because of their political rivalries.

15.He said that in 2005, when he and his cousin together with other PML-Q supporters gathered for a meeting, a group of 15 to 20 PML-N members came and demanded they leave the scene.  One of them was holding a pistol and threatened to kill the Applicant and his cousin if they did not leave.  They fired blank shots fired into the air.  While no one was injured in this incident, the PML-N group destroyed most of their properties to be used at the meeting and the meeting had to be cancelled. 

16.In around January or February 2008, the Applicant was attacked by PML-N members when he was on his way home after working at his cousin’s office.  The assailants carried weapons, such as hockey sticks, bamboo sticks, and even a pistol.  The Applicant was beaten to the point that he fell unconscious.  He was taken to a hospital by passers-by.  He made a report to the police.  Despite the police assurance that they would investigate his complaint, nobody was arrested.  The Applicant believed the police would not take any action against the assailants.

17.In March 2008, the Applicant received some threatening phone calls from people claiming be from the PML-N.  On his mother’s advice, he went to Lahore to stay with a relative until his departure to Hong Kong in September 2009.  Nothing eventful happened during that period of time except for some anonymous threatening phone calls from PML-N to his mother looking for him.

18.As to the current situation, the Applicant said his cousin might have left Pakistan.  His last contact with his family was in around March 2015.  Despite being a mere supporter of the PML-Q and the long lapse of more than five years, the Applicant continues to believe that he would be targeted by members of the PML-N.

The finding of the Board

19.The Board scheduled an oral hearing on 17 March 2017 to enable the Applicant to supplement his evidence.  The Applicant did not turn up.  He did not respond to the Board’s letter requesting explanation for his absence.  Therefore, the Board assessed his claim on the basis of the information before it.  The Board found the Applicant’s evidence unreliable. It also found his behaviour since his arrival in Hong Kong inconsistent with someone who truly wanted non-refoulement protection.  The behaviour included his disrespect for the law in overstaying in Hong Kong after each of his entries, his involvement in criminal activities, his failure to attend court hearing.  More importantly, he made misrepresentation in his Supplementary Claim Form by stating that he was working in Pakistan from 2000 to 2003 when immigration record showed he was actually in Hong Kong on two occasions in 2001 and 2002.  The Board found him exaggerating in his evidence.  The Board was not satisfied that he had established the factual basis in support of his need for non-refoulement protection under any of the three remaining applicable grounds under the USM. 

20.Furthermore, on the basis of authoritative and credible country of origin information, the Board was satisfied that state protection of an adequate standard is available to protect the Applicant from the feared harm. It was also satisfied that being an able-bodied healthy adult with good education and work experience, he could access internal relocation to avoid the alleged harm and it would not be difficult or unreasonable for him to so relocate himself

21.Accordingly, the Board dismissed his appeal against the two Notices.

The legal principles applicable to judicial review

22.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

23.The Applicant did not advance any grounds for judicial review in his Form 86.  In his supporting affirmation, he only exhibited a copy of the Decision.  The above legal principle was explained to him at the hearing.  In response, he reiterated that his life will be in danger if returned to Pakistan.  He complained that it was procedurally unfair for the Board to reject his evidence without sending immigration officers to Pakistan to investigate his claim.  He also complained that the country of origin information relied on by the Board is untrue and that he could not obtain state protection in Pakistan.  In summary, all the grounds advanced by him are challenges against the finding of fact of the Board which is not permissible, unless the Board made its findings as a result of errors of law or procedural unfairness and its Decision irrational.

Conclusion

24.In the absence of specific or proper grounds of application, the Court could only focus on the usual challenges raised in a judicial review, namely error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  Specifically, the Court does not consider the high standard of fairness requires the Board or the Director to send officers to the risk state to collate evidence to support an applicant’s claim.  That would be impracticable.  The high standard of fairness would be discharged by obtaining country of origin information from credible and authoritative sources and considering whether the applicant’s claim is plausible on the basis of such information. That was what the Board did.  It considered conflicting country of origin information from credible and authoritative sources, including Country of Origin Information Report on Pakistan issued by the United Kingdom Border Agency Home Office, Country Reports on Human Rights Practices for 2013 – Pakistan published by the US Department of State, the Police Organizations in Pakistan issued by the Human Rights commission of Pakistan/Commonwealth Human Rights Initiative on 2010.  As for the weight to be given to the information, it is a finding of fact which is a matter solely within the realm of the Board and which this Court may not interfere save for errors of law, procedural unfairness and irrationality in the Decision.  

25.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the remaining three applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  However, it found the Applicant incredible and his evidence unreliable.  The Board also found that in any event he could avoid or prevent the harm by accessing internal relocation and seeking state protection.  It was on that basis that the Board found he had failed to prove the factual basis in support of his claim to non-refoulement protection under any of the remaining three applicable grounds.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  It is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

26.The Applicant has no reasonable explanation for the almost four and half years’ delay in applying for leave to apply for judicial review.  His proposed judicial has no realistic prospect of success.  For the above reasons, extension of time for filing his application for the leave to apply for judicial review and the leave application are refused.

Dated 23^rd day of May 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

[1]  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[2]  risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[3] risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[4]   CACV 63/2015 (unreported) 3 November 2015

[5] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[6]  [2018] HKCA 524 at [14(1)]