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

HCAL 1366/2019

[2024] HKCFI 521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1366 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:

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

2.  Leave to apply for Judicial Review be refused.

Observation for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 16 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”). His application is late. This issue will be dealt with below.

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was scheduled on 26 July 2023 for the applicant. However, he was absent without prior notice to the Court. Therefore, his application is dealt with on paper.

The applicant

3.The applicant is a national of Pakistan. He was arrested by police on 18 September 2015 and admitted having illegally entered Hong Kong via Mainland China on the same day. He raised a non-refoulement claim on 20 September 2015 on the basis that he would be killed by his relatives (Ashraf, Nazakat, Parveiz and Tariq) who were members of the current ruling political party (the Pakistan Muslim League (Nawaz)) (“PML(N)”) if he is refouled to Pakistan.

4.In brevity, the applicant claimed that due to him supporting the Pakistan Tehreek-e-Insaf (PTI), which was an opposing political party against the PML(N) and the Muttahida Quami Movement (“MQM”), he was always harassed specifically by the MQM as his business was located in an area in Karachi that was controlled by the MQM. On day in around 1999, the applicant was attacked by several people while working in his shop. One of them even had a revolver and shot one of the shop employees, who was in serious condition and required hospitalization for two weeks. The applicant believed the assailants were members of the MQM who were hired by his relatives. The applicant therefore decided to close his business and relocate to Attock. Whilst in Attock, he did not suffer any attacks from MQM members but had begun several arguments with one of his relatives (Tariq). The dispute mainly centered on a piece of land that was inherited from the applicant’s father. Between 2000 to 2015, Tariq and the applicant had physical altercation on two occasions due to this land dispute. However, as his relatives (including Tariq) were members of the PML(N) which were associated with the MQM, the applicant did not report any of the aforesaid incidents to the police as he believed they were influential and capable of bribing the police. In order to avoid further conflict with his relatives, the applicant followed his elder brother’s advice to go to China. Subsequently in China, the applicant was told by other Pakistani in China to enter Hong Kong to seek asylum. Details of the applicant’s claim are set out at [6] of the Notice of Decision dated 8 June 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that: (i) the perceived harm or ill-treatment from members of the MQM or his relatives was not as imminent and substantial as the applicant alleged, including an uneventful period of 15 years while he was residing in Attock [16]; (ii) the low intensity of past ill-treatments from his relatives indicated an unlikelihood of future risk of harm [18]; (iii) the availability of state protection would further lower or negate the level of risk [19] – [20]; (iv) internal relocation was a viable option to the applicant [26] – [31].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 19 June 2018, the Board conducted an oral hearing for his appeal, during which he testified [7] and was legally represented via the Duty Lawyer Service.

8.Having considered the applicant’s evidence, the Board found his evidence implausible, inconsistent and ambiguous. In the Board’s Decision, the Board came to the conclusion:

“70. Based on the implausibility, inconsistency and ambiguity in the Appellant’s evidence as discussed above, the Board finds the Appellant is not a witness of truth and that his claims regarding the problems he experienced in Karachi and also in Attock as a result of an alleged land dispute, not credible. It does not accept the Appellant was subjected to extortion from the MQM…is employee was shot during a visit by MQM members to his shop…The Board finds the Appellant’s evidence in respect of this dispute, which forms the central aspect of his claim for protection extremely vague and conflicting, and as such considers it not unreasonable to conclude that he has concocted his entire account. As such, the Board finds the Appellant does not face harm from the MQM in Karachi or Tariq and his other relatives.

72. For the reasons above, the Board considers there is not a real risk the Appellant would face any of the proscribed forms of harm should he return to Pakistan.”

9.The Board therefore dismissed the applicant’s appeal.

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

10.The applicant has filed Form 86 dated 21 May 2019 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has not raised any specific ground in support of his application.

DISCUSSION

12.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 16 January 2019. The delay is about 4 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

13.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).

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

15.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.”

16.The Board had found that there was no evidence to show that the applicant will be subject to the risks as claimed if he returns to his country. There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

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

Dated the 15^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