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

HCAL 1610/2019

[2024] HKCFI 474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1610 of 2019

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 the Applicant being absent in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 13 June 2019 for leave to apply for judicial review (the “leave application”) of (1) the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 7 May 2019 refusing his request to make a subsequent claim (the “2019 Notice”) and (2) the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated29 May 2019 (the “Decision”) holding that his notice of appeal against the Notice was a nullity and that the Board had no jurisdiction to hear his intended appeal against the Notice.

2.The Applicant had previously raised a non-refoulement claim on 17 October 2009 after his arrest by the police on 14 October 2009 for illegally remaining in Hong Kong. In gist, his claim was, if refouled back to Pakistan, he would be harmed or killed by two professional robbers in revenge because he had provided information to the police resulting in their imprisonment. He provided the information in an attempt to exonerate his brother who was implicated in the robbery. The information led to recovery of stolen properties from the robbers’ homes. The robbers and his brother pleaded guilty to robbery and were sentenced to three months’ imprisonment. After their release from prison, the robbers confronted the Applicant twice and threatened to kill him. On one occasion, they fired at him, though the shot missed. Then, the Applicant fled to Hong Kong via Mainland China.

3.The Applicant’s claim was dismissed by the Director’s Notice of Decision dated 4 February 2015 (the “2015 Notice”). He appealed but he applied to withdraw his appeal at the hearing before the Board on 17 September 2015. The Board allowed his application. His appeal was dismissed on the ground that it was safe for him to return to his home country. It was treated as having been disposed of and finally determined. The Applicant was returned to Pakistan on around 13 November 2015.

4.According to the Applicant, four or five months after his return to Pakistan, he was attacked by the robbers. The robbers fired at him while he was riding his motorbike. He fell down from his motorbike and was injured. He was hospitalized for two days. After his discharge from hospital, he fled to Lahore where he stayed for four months. Then he went to Mainland China where he stayed for about three years before coming to Hong Kong again.

5.He was arrested on 12 March 2019 for illegally remaining in Hong Kong. On 15 March 2019, he raised another non-refoulement claim which was taken by the Director as an intended subsequent claim under section 37U(1) of the Immigration Ordinance (the “Ordinance”).

6.The immigration officer noted that the nature or basis of his claim was based on the same threats from the same two professional robbers in Gujrat, Punjab, Pakistan as in the original claim. The immigration officer therefore held that there had not been any significant change of circumstances for the purpose of section 37ZO(2) of the Ordinance. He was unable to find any indication that the robbers had escalated their attacks or posed any fatal attack on the Applicant after his last return to Pakistan. Further, as the Applicant was able to live safely in Lahore for four months where he was not troubled by the robbers, the immigration officer considered the future risk of harm upon the Applicant’s return to be low and would not meet the threshold requirement for claiming protection from any of the proscribed risks of harm. Hence, the Director issued the 2019 Notice refusing his request for making a subsequent claim.

7.The Applicant lodged a notice of appeal (the “NOA”) with the Board against the Notice on 20 May 2019. By a letter dated 29 May 2019, the secretariat of the Board acknowledged receipt of NOA but informed the Applicant that the NOA was a nullity as the Board had no jurisdiction to hear the intended appeal by virtue of section 37ZQ(2) of the Ordinance and paragraph 3.5 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme, and that his claim would not be processed further. That is the Decision which the Applicant seeks to judicially review.

8.The Applicant requested a hearing in his leave application. An oral hearing on 3 January 2024 was scheduled for him. On 15 November 2023, a letter inviting his written submission was sent to him by post at his last known address provided by him on 29 July 2019. A notice of hearing was also sent to him by post on 20 December 2023. The Court has since never received any notice of change of address from him. The letter and notice of hearing were never returned through the course of mail. On 2 January 2024, the court clerk called the Applicant on the telephone number as provided by him to remind him of the hearing. A man claiming to be the Applicant’s friend answered the call and undertook to remind the Applicant of the date and time of the oral hearing. However, the Applicant did not appear at the hearing. There was nothing to suggest he had not received the notice of hearing. In fact, all the indications are that the hearing had been adequately brought to his notice.  Having considered the nature of the application and issues raised, the 2015 Notice, 2019 Notice, the Decision, the papers, the relevant legal provisions and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

The legal principles applicable to judicial review

9.The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[1].

Grounds for judicial review

10.The Applicant advanced the following four grounds of application in his supporting affirmation:

(1)  The Decision was not reasonable and unfair. The Adjudicator failed to give him sufficient time and chance to arrange relevant evidence.

(2)  The Director failed to give proper weight to the presence of state acquiescence. He was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles.

(3)  The Director failed to take such arguments into account; and failed to give weight to country of origin information supporting the Applicant’s aversion that the police in his country would not be able to protect him.

(4)  This was a clean case of unfair attitude shown by the Director. The corruption and incompetency of the administration in his home country is still a very serious problem. The Director failed to attain the high standard of fairness required by the Wednesbury test.

11.The decisions sought to be reviewed are the decision in the Director’s 2019 Notice refusing his request to make a subsequent under section 37ZO and the Board’s 2019 Decision that his NOA is a nullity. It is manifestly obvious that the grounds listed above are directed at the Director’s decision in his 2015 Notice and not relevant to the present leave application.

Leave application in respect of the Director’s 2019 Notice

12.The Director’s decision in the 2019 Notice is that the Applicant’s request to file a subsequent claim under section 37ZO be refused. There is a limitation on a claimant’s right to make a subsequent claim under the non-refoulement regime imposed by section 37ZO(2). That section provides as follows:

“ 13. Limitation on subsequent claim

(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

13.Thus, the issues raised by a request to make a subsequent claim are (1) whether there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and (2) whether the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success. The Director’s decision in the 2015 Notice and none of the issues raised and facts or matters determined therein are relevant. In fact, by reason of the Applicant’s withdrawal of his appeal, his appeal against the 2015 Notice was disposed of and those issues, facts or matters raised therein were finally determined and binding on him. They may not be raised in this leave application, except for the purpose of considering whether the circumstances described by the Applicant in support of his intended subsequent claim when tested against those issues, facts or matters constitute a significant change of circumstances and whether that change when taken together with those issues, facts and matters finally determined would give the intended subsequent claim a realistic prospect of success.

14.The Director’s finding of fact as summarized in Paragraph 6 above is that there has been no significant change of circumstances. The Applicant’s persecutors are the same two robbers. The locality of the proscribed harm is the same, ie in Guirat. The cause of the persecution is the same, ie the Applicant’s providing information leading to the robbers’ imprisonment. The nature of harm is the same, ie assault and shooting. The threat is the same, ie the threat of death. All these circumstances were found by the Director in his 2015 Notice to be insufficient to support a claim for non-refoulement protection under any of the applicable grounds under the USM. And that finding is final and binding on the Applicant by reason of his withdrawal of his appeal against the 2015 Notice. The Director’s finding in the 2019 Notice is based on the facts as alleged by the Applicant as tested against the facts found in the 2015 Notice. The Applicant could not have any valid complaint against such finding of fact. In view of the above, the Director’s finding in the 2019 Notice that there has been no significant change of circumstances could not have been erroneous in law, procedurally unfair or irrational. The intended judicial review of the 2015 Notice has no prospect of success. That is why the Applicant now finds it necessary to challenge the Board’s 2019 Decision.

Leave application in respect of the Board’s 2019 Decision

15.The Applicant seeks to challenge the Board’s decision in the 2019 Decision. What happened was that upon receipt of the NOA, the secretariat of the Board informed the Applicant by letter dated 29 May 2019 reminding him that his appeal had been withdrawn upon his own application at the hearing of the appeal on 17 September 2015; that under the relevant provisions the Board has no jurisdiction to hear the intended appeal; hence the NOA filed will be treated as a nullity and will not be processed further. He was informed by that letter that his appeal against the 2015 Notice was dismissed on the ground that it was safe for him to return to his home country and that his appeal was treated as having been disposed of and finally determined. The secretariat also attached a copy of letter of the same date notifying him of the same and his acknowledgement of receipt of that letter. The issues raised by this leave application is whether the Board has made the 2019 Decision which is a decision which is judicially reviewable for errors of law, procedural unfairness or irrationality.

16.What the secretariat did was to inform the Applicant that the Board has no jurisdiction over the intended appeal and hence his NOA is a nullity. The secretariat would not have so informed the Applicant had it not had instruction from the Board or an adjudicator of the Board. Technically, there was a decision made to decline jurisdiction, albeit not in the usual format including a signature of the adjudicator. The letter dated 29 May 2019 evidences the Decision.

17.The Board derives its jurisdiction from the statutory provisions establishing the Board. These are section 37ZQ which established the Board and its function; and section 37ZR which defines its jurisdiction. These sections provide as follows:

“ 37ZQ. Appeal Board established

(1) A board to be known as the “Torture Claims Appeal Board” is established.

(2) The function of the Appeal Board is to hear and determine—

(a) an appeal made under section 37ZR; and

(b) an application for a revocation decision under section 37ZM.

37ZR. Appeal

A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under—

(a) section 37ZE(4) or 37ZG(5) (decision not to re-open a torture claim);

(b) section 37ZI(1)(b) (decision rejecting a torture claim); or

(c) section 37ZL(1) (revocation decision made by an immigration officer).

18.Section 37ZM gives the Board jurisdiction upon an application by an immigration officer to revoke its own decision which reversed the decision made by an immigration officer. Section 37ZE(4) and 37ZG(5) give jurisdiction to the Board to determine an appeal against an immigration officer’s decision refusing to re-open a torture claim deemed to have been withdrawn under 37ZG(1). Section 37ZI(1)(b) gives jurisdiction to the Board to determine an appeal against an immigration officer’s revoking his earlier decision accepting a torture claim as substantiated. None of these provisions gives the Board jurisdiction to review its own decision allowing a claimant on his own application to withdraw his appeal against an immigration officer’s decision. If the Board were to assume jurisdiction to determine the NOA, it would be acting ultra vires the Ordinance. Declining jurisdiction is the only and proper thing for the Board to do. Its Decision cannot be criticized as erroneous in law, procedurally unfair or irrational.

Conclusion

19.For the above reasons, the Applicant’s leave application is refused.

Dated 7^th day of February 2024.

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