Qaisar Naveed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2497/2019

[2025] HKCFI 716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2497 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 27 May 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expires on 27 August 2019. His application was filed on 28 August 2019, which is late for only one day. This issue will be dealt with below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 5 February 2025. I shall deal with his application on the papers.

3.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

4.The applicant, aged 38, is a national of Pakistan. He sneaked into Hong Kong as an illegal immigrant on 20 November 2015 by boat and was arrested by police on the same date. The applicant lodged his non-refoulement claim on 22 November 2015. The applicant’s claim was based on his fear of being harmed or killed by people from the Pakistan Muslim League (Nawaz) (“PML(N)”) because of his participating in the Pakistan People Party (“PPP”) and refusal to join PML(N).

5.According to the applicant, the people of PPP had been called upon him to join this Party about 2 times every week. There was an occasion that he was hoisting the Party’s flag and putting up the posters where the PPP people assaulted him. He managed to escape. Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 24 May 2018 (“the Director’s Decision”).

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the absence or low intensity and frequency of the ill-treated encountered is indicative of a small future risk of harm and that the applicant’s involvement in PPP was low and localised [15-16]; state protection was available and no substantial information showed that the applicant was targeted by authorities [21]; and internal relocation alternatives were available and reasonable [23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 2 May 2019, the Board conducted an oral hearing. The applicant was absent at the hearing despite due notice having been given to him.

9.Having considered the evidence, and considering the applicant’s failure to attend the hearing, the Board found that the applicant was unable to establish the details of key aspects of his claims [44-51]; and the Board formed the view that without the applicant’s explanation, the Board concluded that no weight could be attached to what are essentially mere assertions [50]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

10.The applicant has filed Form 86 dated 28 August 2019 for leave to apply for judicial review of the Board’s Decision.

11.In the applicant’s affirmation in support of his application, the applicant deposed that the Board did not give him a chance to appear for an oral hearing to explain his case and he annexed a letter with grounds which can be summarised as follows: the country of origin research is only based on online research with no real investigation; and no one could get justice easily in Pakistan.

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. I shall consider the merits of the applicant’s case.

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

14.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.”

15.For the reasons the Board has given above, the Board was entitled to form its views as it did. The applicant had failed to establish his facts in support of his application. Those reasons under paragraph 11 are not valid to challenge the Board’s Decision as he was absent before the Board without any good reason and his allegation is only his bare assertion without any evidence in support.

16.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

17.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.

The applicant was unrepresented and did not appear.