Taj Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 830/2019

[2023] HKCFI 1554

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 830 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 present 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 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 (1) the Director’s Decisions as referred to in paragraph 10 below and (2) the Decision dated 9 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application for judicial review of the Director’s Decisions fails in limine as held by the Court of Appeal in Re: Moshsin Ali [2018] HKCA 549[1]. It is therefore dismissed. The Court will consider his application in relation to the Board’s Decision only.

2.His application filed on 26 March 2019 is late.^[2] The deadline for the application is 9 October 2018. The delay is about five and a half months. I shall deal with this issue below.

3.The applicant did ask for a hearing. He appeared before the Court on 4 January 2023.

4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, 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

5.The applicant is a national of Pakistan.  He last entered Hong Kong illegally on 15 April 2009 and was arrested by the police on the same day.  On 25 April 2009, he lodged 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 people in his village who belonged to a tribe/ethnic group called Pathan.

6.In short, the applicant claimed that the Pathan people in his village had been attempting to take over his family’s land since he was only 12 or 13 years old.  Before 1997, there were only minor incidents.  However, in 2009, the applicant encountered two incidents, in one of which, he was attacked by the Pathan people and was almost shot.  Out of fear, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 20 of the Notice of Decision dated 23 September 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) the Pathan people had no intention to cause serious harm or even kill him [31]-[35]; (ii) state protection would be available to him [36]-[42]; and (iii) internal relocation was a viable option [43]-[48].

9.For reasons set out at the Notice of Further Decision dated 24 January 2017, the Director also found that the applicant’s right to life would not be violated and rejected his claim on BOR 2 risk (the “Director’s Second Decision”).

10.The Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decision

11.The applicant appealed the Director’s Decisions to the Board.  On 10 February 2017, the Board conducted an oral hearing for his appeal, during which he did not testify [3].

12.The Board examined the applicant’s evidence provided in the written statement and found that the information provided by him was unreliable [27]-[40].  Taking his evidence to the highest, the Board found that the Pathan people had no intention to kill him for the land because the title owner of the land was the applicant’s father who remained unharmed by the Pathan people [41]-[46].  Meanwhile, the land dispute was a private one without state involvement [66].  In any event, state protection and internal relocation were both available to the applicant [47]-[60].

13.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

14.The applicant has filed Form 86 dated 26 March 2019 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, he set out his grounds below.

(1)  The Board had failed to recognize the applicant as a member of a particular social group, namely, non-Pathans who are subject to ill-treatment by the Pathans in the area he lived.

(2)  The adjudicator made his decision, relying on his bias. This is shown by the fact that the adjudicator relied on his presumption or assumption that the applicant did not have good reason for coming to Hong Kong in 1997 as he had not set it out in detail in the NCF to support his case. However, the adjudicator did not give him a chance to explain before he made his conclusion. Although the applicant did not give evidence, the adjudicator cannot rely upon this assumption to come to his conclusion that the applicant’s information given is unreliable. The adjudicator should have put forward to him what information he would take into consideration against him and asked him whether or not he chose to respond to that. The adjudicator failed to do that.

(3)  The Board’s Decision is in English and there was no translation for the applicant. Therefore, he did not know the reasons behind the Board’s Decision. He reserves his right to make further submission before the court.

DISCUSSION

16.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 9 October 2018. The delay is five and a half 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.

17.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).

18.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he understood the Board’s reasons and that he should be allowed to stay as his life would be in danger if he returned to his country.

19.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.”

20.As to the grounds under paragraph 15, supra, ground (1) fails as the Board had obviously taken the issue into consideration and found that the Pathans people had no intention of harming or killing him. See paragraph 12 above. This is the fact found by the Director and the Board. The Court will not interfere with their finding of the facts.

21.As to ground (2), as the applicant elected not to testify, he has to bear the consequences of his own decision. The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration CACV 286/2011, 21 November 2012 [2013] 1 HKC, 526, CA, Hon. Cheung CJHC, Stock VP and Fok JA held:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, ‘to simply sit back and require the Director to disprove it’. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.”

22.The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim: section 37ZA (1)(a)[3]. As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. In my view, high standards of fairness give no exemption to the applicant for the compliance of the Ordinance.

23.The Board is entitled under the law to take into consideration the applicant’s refusal to testify to determine his credibility. Section 37ZD of the Ordinance provides:

37ZD.Credibility of claimant

(1)  In considering a torture claim, an immigration officer or the Appeal Board may take into account, as damaging the claimant’s credibility, the following behaviour of the claimant—

a.  any behaviour that the immigration officer or the Appeal Board considers is designed to, or is likely to be designed to—

(i)  conceal information;

(2)  Without limiting subsection (1)(a), behaviour described in any of the following paragraphs is behaviour within the meaning of that subsection—

a.  failure, without reasonable excuse, to comply with any requirement, procedure or condition (including any time limit)—

(i)  prescribed by this Part; or

(ii) required or specified by any person under this Part.

(3)  This section does not prevent an immigration officer or the Appeal Board from taking into account any other behaviour of the claimant as damaging the claimant’s credibility.

It is clear that the above statutory provisions do not encourage the applicant not to cooperate with the Director or the Board in making enquiries into the facts of their cases in support of their applications for non-refoulement claims. One may say that the claimants’ right of silence before the Director or the Board is limited under the Ordinance.

24.However, the Board did not solely rely upon the finding that it did not believe that the applicant came to Hong Kong for asylum to found its conclusion. It had also found that state protection and internal relocation were available to the applicant.

25.Ground (2) fails.

26.As to ground (3), the Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”

27.Also, the Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:

“I8. … …Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”

28.Ground (3) fails, too.

29.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.

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

CONCLUSION

31.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 15^th day of June 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