MEHMOOD ARSHAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2125/2019

[2024] HKCFI 3127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2125 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 19 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“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 19 September 2018. His application was filed on 24 July 2019, which is late for more than 10 months. This issue will be dealt with below.

2.  The applicant did not ask for a hearing. I shall deal with his application on paper.

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 43, is a national of Pakistan. He was arrested by police on 13 July 2009 and was referred to the Immigration Department. He admitted that on 13 July 2009, he sneaked into Hong Kong from Shenzhen. He lodged a non-refoulement claim on torture risk, BOR2 risk, BOR 3 risk and Persecution risk (“the applicable risks”).

5.  The Director, by Notice of Decision dated 20 July 2015 rejected his claim on torture risk, BOR 3 risk and Persecution risk. By a Notice of Further Decision dated 1 December 2016, the Director rejected his claim on BOR 2 risk.

6.  The applicant’s claim is based upon that, if refouled, he will be harmed or killed by his distant paternal uncle because of a land dispute, and that he will be arrested by the Pakistani police who accused him of having wounded 2 associates of his uncle.

7.  According to the applicant, he had inherited a piece of land from his father. However, before his father’s death, his paternal uncle was in dispute with his father over the piece of land. Since his father’s decease, his uncle dispossessed the piece of land and leased it to his tenants as the applicant discovered that the land had been changed and registered in his uncle’s name. The applicant confronted with his uncle whereupon he was assaulted and injured on his thumb by people of his uncle. He had to receive medical treatment in a clinic. He reported to police. After recovery of his injury, he went to the police again, this time, the police accused him of injuring 2 people of his uncle. On the advice of his family members, he moved to live in other places. Finally, he decided to leave Pakistan for Hong Kong. Details of his story can be seen from paragraph 4-13 of the Board’s Decision.

The Director’s Decision

8.  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”).

9.  The Director rejected his claim for the reason that it was not substantiated. The Director found that it was a private dispute between him and his uncle over a land dispute; that the risk of being harm if he returns to Pakistan is low; and that if the police are looking for him, he may have a chance to clear himself with the police and there is no evidence to show that the police has evidence of the case of wounding. The Director further found that state protection would be available [28]-[30] and internal relocation is a viable option [31]-[34].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 23 January 2017, the Board conducted an oral hearing.

11.  Having considered the evidence in relation to all the applicable risks, the Board concluded:

“60. For the reasons given above, the Appellant has not made out a case under any of the aforesaid applicable grounds under the USM. The appeal is therefore dismissed and the decisions of the Director dated 20 July 2015 and 1 December 2016 are hereby confirmed.”

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

12.  The applicant has filed Form 86 dated 24 July 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant did not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

14.  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.

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

16.  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.”

17.  For the reasons the Board has given above, the Board found that the applicant will not be subjected to any of the applicable risks if he returns to Pakistan. The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.

18.  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

19.  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.