ASIF MAHMOOD v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 816/2021

[2021] HKCFI 2773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 816 of 2021

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 2 March 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). 

2.  He is now being detained by the Immigration Department.  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 RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a citizen of Pakistan.  He came to Hong Kong as a visitor on 29 March 2003.  He overstayed and was arrested by police on 19 November 2013 for breach of condition of stay and other criminal offences.  He was sentenced to imprisonment.  He lodged non-refoulement claim by written submissions on 1 April 2014 and 15 January 2018.

5.  He claimed that if refouled, he would be harmed or killed by his father-in-law, brother-in-law or police as a false accusation was filed against him of either killing or kidnapping his wife and child.  His marriage with his wife was opposed by his father-in-law and his brother-in-law because of their different races.  Shortly after his wife had given birth to his son, his wife and son suddenly disappeared.  He had filed a complaint with police.  But he was arrested by police with the allegation that he might have kidnapped his wife and son.  He was detained in police custody where he was tortured by a police officer, forcing him to disclose the whereabouts of his wife and son.  He suspected that the false charge was caused by his in-laws as they were police officers.  He instructed a lawyer and obtained bail from court.  However, he did not answer bail and fled to Hong Kong.  Details of his story are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

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 Notice of Decision dated 12 October 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed by his in-laws and the police upon his return to Pakistan [14]; that the problem was between himself and his in-laws and did not involve the government of Pakistan [21.1]; that reasonable state protection was available to him [23] and that internal relocation was an option open to him [24].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision.  The Board received his notice of appeal on 22 December 2020 and found that the appeal was made more than 2 years late [29] The Board found that his explanation for his delay was sketchy.  It seems that the applicant was telling the Board that he was being detained [21].  In any event, the Board seemed to be not satisfied with his explanation.  It went on to consider the underlying merits of the applicant’s case.  At paragraph 61 of the Board’s Decision, it held:

“There is nothing before me to show that the Appellant has a very strong case to appeal against the NOD (Notice of the Director’s Decision) … I see no patent error in the NOD….”

9.  Obviously, the Board had considered the Director’s Decision before making such findings.  Based upon its findings, it refused to extend time for the applicant to file his notice of appeal, in effect, dismissing his appeal.

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 2 June 2021 to apply for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he said that he was not satisfied with the Board’s Decision and it was dangerous for him to return to Pakistan.

DISCUSSION

12.  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, CA.  §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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.… …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 Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019:

“16. Section 37ZT(3) of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if it is satisfied that by reason of special circumstances, it would be unjust not to do so.

17. Where a notice of appeal to is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

… …

20.  …  it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

16.  The Board has considered the Director’s Decision on the merits of the applicant’s case.

17.  His grounds in support of this application do not assist his application. 

18.  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.

19.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

20.  I therefore refuse to grant leave to the applicant 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