QADEER ABDUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2107/2018

[2022] HKCFI 325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2107 of 2018

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;

Extension of time for the application for Judicial Review be refused &

the application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decisions dated 22 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application filed on 3 October 2018 is late for more than 3 months. I shall deal with this issue below.

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), 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 Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) is the proposed respondent, the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 26 December 2007 and was arrested by the police on 3 January 2008. On 23 February 2008, he lodged a torture claim, which was taken as a non-refoulement claim upon the commencement of unified screening mechanism in 2014.  The basis of the applicant’s claim was that, upon refoulement, he would be harmed or killed by Inter-Services Intelligence (“ISI”) of Pakistani authorities and/or members from different religious organizations.

5.  According to the applicant, he developed an interest in Jihad and was involved with Hizbul Mujahideen (“HM”), the military wing of Jamat-e-Islami (“JI”).  The applicant claimed that ISI was one of the largest intelligence agency in Pakistan and supported HM.  He attended ISI’s training camp and was called by the people in Kashimir as Afghani.  The applicant went on missions with the HM, primarily responsible for collecting information from local people at the border between India and Azad Kashmir.  However, after 4 to 4.5 months, the applicant realized he had different visions with the groups and thus he left.  Thereafter, the applicant formed his own group.  On one evening, the applicant and other members crossed the Kashmir line of control and went to a special hide-out near Kupwara City.  There, his group joined another group named Harkat-ul-Ansar and, together, they reached Srinagar.  Nevertheless, the applicant again realized that the group they joined also disobeyed the aim to safeguard Islam and Islamic traditions.  His thought was known to the senior commanders who started to abuse, slap and punch him.  In the beginning of 1996, the applicant and his own group were handed over to the Interrogation Center in India and were detained.  During the interrogation, he was abused by the officers.  Later, he was transferred and detained in different prisons pending the result of his case.  Eventually, the applicant served ten years in prison. Upon his release in February 2006, he was interrogated again.  Finally, in April 2006, he arrived home in Pakistan.  Yet, a suicide bombing occurred near his neighborhood and ISI accused him of being a suspect for the bombing.  The applicant realized that it was the way from HM to pressurize him to work for them again.  After getting phone calls of threats from unknown callers, JI and HM, the applicant eventually fled to Hong Kong for protection.  Details of his story are set out in paragraph 19 of the Notice of Decision dated 16 March 2016 by the Director (“the Director’s First Decision”) described below.

The Director’s Decisions

6.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 the Director’s First Decision, the Director refused his claim on the grounds of Persecution risk, Torture risk and BOR3 risk for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed if he returned to Pakistan was assessed to be low [32]-[37]; that state protection would be available to him [38] and that internal relocation was an option open to him [39]-[42].  In the Notice of Further Decision dated 22 June 2017, the Director also rejected his claim on BOR2 risk for the reason that there was no evidence to show that his right to life would be violated upon his return to his home country. 

The Board’s Decision

8.  On 29 June 2017, the applicant filed a notice of appeal against the Director’s Second Decision.  It is pertinent to note that he did not file any appeal against the Director’s First Decision, which thus had become final.  The Board also decided that a hearing was not required for his appeal.

9.  The Board noticed that the applicant did not provide any grounds or additional information in support of his appeal [10].  None of the grounds in the notice of appeal/petition were relevant to his appeal against the Director’s Second Decision.  Further, after considering the applicant’s non-refoulement claim form, his record of interview and his submissions, the Board reached a conclusion that he would not be subjected to any risk of harm as claimed under BOR2 risk.  Thus, the Board dismissed his appeal. 

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 3 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he stated “The Board did not consider the following:

(1)   The applicant was not fit physically and mentally; his treatment was going on.

(2)   The applicant did not have education of law.

(3)   No lawyer was provided for giving any advice to applicant.

(4)   The Board decided the case on assumption without considering many truths and serious evidence.

(5)   In presence of another evidence, the Board cannot infer that the applicant has no case.”

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 delay is serious. However, I shall first 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.  The applicant’s grounds in support of his application do not assist him. Although he had raised the medical issues to the Board, there is no medical evidence that he was not physically or mentally.  The fact that he does not have education in law does not constitute a ground for his application.  The Court of Appeal had held that he is not entitled to legal representation or advice free of charge at all times as he had had legal advice at the screening stage before the immigration officer.  See Re Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018 at §22.  He did not challenge the Director’s First Decision, which forms the factual basis of his claim and the Director had found that he did not have any prospect of success in his claim.  He had given no further information or evidence in support of the BOR2 risk claim.  The Board was quite entitled to accept the Director’s First Decision.  There is no evidence to show that the Board made its decision on assumption or inference without evidence.

16.  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.

17.  There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to extend time for the applicant to apply for leave to apply for his intended judicial review.  Accordingly, I dismiss his application.

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