ZUBAIR MUHARRAM v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1452/2018

[2019] HKCFI 2810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1452 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 17 April 2018 be refused; and

(2) Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1) If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5) Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

2.  Pursuant to the applicant’s request, a hearing was fixed to take place at 10:00 am on 23 January 2019 by court’s direction dated 28 December 2018.

3.  The applicant was absent on the date of hearing. There was no prior notice that he would not be able to attend the hearing.

4.  By an Order of the same date, the applicant’s applicant was therefore dismissed for want of prosecution.

5.  By summons dated 19 February 2019, the applicant applied for relief to be granted under the said order dismissing the applicant’s application.

6.  In support of his application, the applicant has filed his affirmation, in which he explained that he did not receive the Notice of Hearing. He asked the Court to prove service of the Notice of Hearing. He further said that there was no reason for him not to attend the hearing on 23 January 2019. He further explained that the said Notice might have been picked up by someone else.

7.  Bearing in mind the importance of the application to the applicant, I was prepared to give him the benefit of the doubt that he had not received the Notice of Hearing. I would consider the merits of his application before deciding whether leave should be granted to him for judicial review of the Board’s Decision.

8.  I therefore set aside the order dated 23 January 2019 under Order 32, rule 6 of the Rules of the High Court and I heard his application for leave to apply for judicial review of the Board’s Decision.

The applicant

9.  The applicant is a Pakistani national. He arrived in Hong Kong on 27 October 2015 illegally through China. The next day, he was arrested by police and was referred to the Immigration Department for investigation. He lodged his non-refoulement claim on 31 October 2015.

10.  In his statements given to the Director and the Board, he said that he was in fear of being harmed or killed by supporters of Pakistan Muslim League (N) (“PML(N)”) because they considered he was one of the murderers of Muhammad Raqeeb (“Raqeeb”). He was also in fear of being arrested by the Pakistani police and jailed for life due to a false accusation.

11.  According to the applicant’s version, the incidents arouse out of a cricket game where there was a dispute between himself and his college mate Rohail, a supporter of PML(N). Because of the dispute, Rohail and other PML(N) people assaulted him, his father and his neighbors. In one incident, they shot at him and his father. However, Raqeeb was shot by another PML(N) member. But he, his father and his neighbors were charged with murder. He was convicted of the charge and was sentenced to life imprisonment. He was released on bail pending appeal. He was threatened by the PML(N) people from time to time with death. He finally came to Hong Kong.

The Director’s Decision

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

a. risk of torture under Part VIIC 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. 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 under RC”).

13.  By Notice of Decision dated 25 May 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that it was not substantiated.

The Board

14.  The applicant appealed to the Board and a hearing before the Adjudicator was fixed to take place on 12 February 2018. On the hearing date, the applicant was absent and he was nowhere to be found. As a result, the Adjudicator decided that he would reconsider the whole case without a hearing.

15.  By Decision dated 17 April 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

16.  The Adjudicator stated in the Board’s Decision that he had considered the applicant’s case and he found that:

a. the applicant failed to substantiate that he had a well-founded fear of being harmed by the PML(N) people within the context of the Convention for prosecution [60 & 66];

b. the applicant had no genuine and substantial risk of being subjected to any torture or CIDTP [66];

c. the applicant and his father had gone through a fair trial by a proper court of justice in Pakistan and the applicant received a sentence of life imprisonment, not a death penalty and so he was not subjected to BOR 2 risk [72 & 73]; and

d. the applicant failed to substantiate that he qualified as a torture claimant [80].

17.  By Form 86 filed on 24 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.

18.  In his affirmation in support of his application dated 24 July 2018, the applicant relied upon the grounds below:

(1) he did not receive the Notice of hearing from the Board;

(2) he did not have legal representation for his appeal;

(3) the Adjudicator should not assess his case on paper; and

(4) the Board’s Decision was not translated to him.

DISCUSSION

The Director’s Decision

19.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

20.  The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

21.  This is a late application for leave to institute judicial review proceedings against the Board’s Decision. The Board’s Decision is dated 17 April 2018. The applicant’s application is on 24 July 2018. He is therefore 7 days late.

22.  I have to consider whether time should be extended for the applicant to proceed with his application in this hearing. I consider that the merits of his application will determine this issue.

23.  The applicant appeared before me. He confirmed that he did not attend the hearing of the Appeal Board. He was unable to give any satisfactory reason for his absence.

24.  The Board’s findings above were put to the applicant for his comments. He agreed that he had undergone a trial in Pakistan for murdering Raqeed.

25.  He also agreed that it would be unfair for the Hong Kong Government to protect him from going back to Pakistan to go through the legal process.

26.  In the circumstances, it is clear that those grounds of appeal are simply irrelevant. The applicant has no ground in support of his application.

27.  The applicant fails to show that he had a reasonable chance of success in his proposed judicial review.

CONCLUSION

28.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to extend time for the applicant to apply for leave to apply for the judicial review. Accordingly, I dismiss his application.

29.  It is further directed that:

a. If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b. When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c. The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondents and whether the application for leave to appeal shall be determined on paper;

d. If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e. Liberty to apply.

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