KHAN AFZAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 3883/2019

[2025] HKCFI 940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3883 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 30 December 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 28 March 2017 (“the Board's Decision”), which can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003883_2019_files/the_Board's_Decision.pdf

2.  The Board decided that there was no merit in the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 30 April 2015, which rejected the applicant’s claim for non-refoulement protection, and hence the Board dismissed the petition.

Amendments

3.  Apart from naming the Board as a putative respondent, the applicant also named the Director as one of the putative respondents in Form 86, when the Director should be named as a putative interested party.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

Late application

4.  Form 86 was filed on 30 December 2019, which is more than 33 months after the Board’s Decision (made on 28 March 2017).  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.  The applicant was hence late for more than 30 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

5.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)    the length of the delay;

(ii)   the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

6.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.  A delay of more than 30 months is very substantial.  As the applicant did not give any explanation for the delay, there is absolutely no reason for this court to grant any extension of time to the applicant to file the Leave Application. The Leave Application can simply be dismissed for being made out of time.

7.  However, for the sake of completeness, this court will still examine the merits of the intended application.

The applicant’s case

8.  The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)   The applicant is a male Pakistani born in Village Sahar Tehseel, District Mirpur (Azad Kashmir), Pakistan on 23 March 1985.  He received college education.

(2)   The applicant claimed he departed Pakistan on 11 April 2007 for China and stayed in China for some time.

(3)   He was arrested by the Hong Kong police on 18 February 2010 for theft and produced another person’s Hong Kong identity card as proof of identity.  After his release on police bail, he surrendered to Tuen Mun Police Station on 24 February 2010 for illegal remaining.  He told the police that he had entered Hong Kong illegally from the Mainland by boat on 16 February 2009. 

(4)   However, there is another account of when and how he came to Hong Kong in his answers in the Non-refoulement Claim Form.  He answered that he departed Pakistan on 11 April 2007 and arrived in China on 12 April 2007.  He was picked up by someone in Guangzhou and boarded a train.  He then stayed in a hotel in Shenzhen for around 2 months.  Eventually he consumed a cup of tea after a meal and was taken to a vehicle.  After he regained consciousness, he realized he was in Hong Kong.  He could not remember how and through what mode of transport he arrived in Hong Kong although he believed he arrived in Hong Kong by boat.

(5)   He was convicted on 19 April 2010 for theft, remaining in Hong Kong without the authority of the Director after having landed unlawfully in Hong Kong, and using an identity card relating to another person.  He was sentenced to 18 months’ imprisonment.

(6)   The applicant made his first non-refoulement claim to the Director on 21 July 2010.  He claimed that the opposition political parties or the Taliban would harm or kill him, and he feared that the police might arrest and harm him because of the First Information Report issued against him.

(7)   With the introduction of the Unified Screening Mechanism (“the USM”), he made a claim for non-refoulement protection on all the applicable grounds, including:-

(a) risk of torture under Part VIIC of the Immigration Ordinance (“Torture Risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 3 Risk”); and

(c) risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees  and its 1967 Protocol (“Persecution Risk”).

(8)   The Director rejected the applicant’s claim on 30 April 2015.

BOR 2 Risk

9.  In the Director’s Notice of Decision to the applicant dated 30 April 2015, it states that the applicant’s claim for non-refoulement protection was assessed on all the applicable grounds, including Torture Risk, BOR 3 Risk and Persecution Risk.  However, the risk of violation of the applicant’s right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 Risk”) was not specifically mentioned.

10.  Likewise, the Board in the Board’s Decision did not deal with BOR 2 Risk.  The Board, having carefully considered all the evidence, just found that the applicant did not make out a case in respect of Torture Risk, BOR 3 Risk and Persecution Risk.  BOR 2 Risk was not mentioned.

11.  On the same day when the Board’s Decision was made, the Board wrote a letter dated 28 March 2017 to the applicant and informed him of this:-

“If you have separately submitted/will submit additional facts in relation to your non-refoulement claim on the ground of risk of violation of your absolute and non-derogable rights under the Hong Kong Bill of Rights as set out under section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (including right to life under Article 2) and are aggrieved by the decision of the immigration officer, you must file with the Petition Office a fresh Notice of Appeal/Petition within 14 days after the notice of decision is given to you. For the avoidance of doubt, the Board/Adjudicator’s previous decision on your appeals/petitions on other applicable grounds will not be affected.”

12.  From this letter, it seems that the Board was aware of the fact that BOR 2 Risk had not been dealt with.

13.  Thereafter, the Director wrote a letter dated 18 April 2017 to the applicant inviting him to submit additional facts, if any, which he considers relevant to his non-refoulement claim on all the applicable grounds for non-refoulement protection, including BOR 2 Risk.  The applicant was also notified that he must submit the additional information on or before 2 May 2017, and if not, a further written decision of his non-refoulement claim on any other applicable grounds would be made.

14.  The applicant did not provide any additional materials or facts on any other absolute and non-derogable rights, including BOR 2 Risk, to the Director. In the absence of any additional information, the Director reviewed the applicant’s claim including BOR 2 Risk and made a Further Decision dated 4 May 2017.  The Director considered that the applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights being violated (including right to life under BOR 2) upon his return to Pakistan.

15.  The applicant did not appeal against this Further Decision to the Board and hence the Board did not make any further decision regarding this Further Decision of the Director.

Grounds for judicial review

16.  The applicant is required to identify clearly the grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015 dated 22.12.2016).

17.  However, the applicant did not advance any ground for his intended judicial review in Form 86 nor in his supporting affirmation dated 30 December 2019.  He merely stated in his affirmation that he would like to reject and aside [sic] the decision made by the Immigration Department, and they disregarded the danger and threats he faces in his country should he be deported.

Discussion

18.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

19.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

20.  In assessing the appeal/petition by the applicant, the Board held a hearing on 12 August 2016 in order to be fair to the applicant and to enable him to supplement his case and grounds of appeal/petition to the Board in person.  It also enabled the Board to ask him questions in order to understand his case better.  However, after being explained the purpose of the oral hearing, the applicant replied that he did not need to say anything further.  It was for this reason that the Board had to assess the applicant’s claim on all the available documents only.

21.  The Board re-assessed the applicant’s claim on all the applicable grounds under the USM as set out in paragraph 8(7) above (but BOR 2 was not expressly included).

22.  After due consideration of the law and all the available evidence, the Board found that the applicant did not come to Hong Kong to seek non-refoulement protection genuinely.  In fact, he gave two inconsistent accounts of how he came to Hong Kong.  He had no intention to seek this protection until he was arrested by the Hong Kong police in 2010.  The applicant’s fear of being arrested and harmed by local police was due to his organization of a rally, which resulted in setting a government vehicle on fire with the driver beaten up, destruction of the local Electricity Department and setting of fire to a local police station.

23.  Further, the Board found that the Taliban never inflicted any harm or injury on the applicant.  They only urged him to join their organization and asked for donations from him. The Board also found the claimed threats from opposition political parties unsubstantial.  The applicant only suffered minor injuries during previous confrontations.  Hence, the Board concluded that the applicant was not entitled to non-refoulement protection under any of the three applicable grounds as mentioned above.

24.  In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to various country of origin information for the applicant’s country from different sources.  The Board considered that the applicant should be able to obtain assistance from state authorities if he needed it.  Further, being an able-bodied adult who has received college education, the applicant could safely relocate to other places within Pakistan without undue hardship.

25.  There may well be an omission on the part of the Director as well as the Board in not assessing BOR 2 Risk (before the Director’s Further Decision was made), but in this court’s view, it does not amount to any valid ground for giving leave to the applicant to commence judicial review against the Board’s Decision. 

26.  In Kulwinder Kaur v Director of Immigration [2022] HKCA 48, the Court of Appeal held that “upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk”.  This is the same situation here. As the Director and the Board have already found that there is no BOR 3 Risk in the present case, there is no arguable ground for BOR 2 Risk either.  In fact, the applicant was given the chance to provide further information after the Board’s Decision, but he failed to take that opportunity to give any further information.  The applicant cannot be regarded as being treated unfairly. There can be no reasonably arguable claim based on BOR 2 Risk, even if the applicant had relied on this omission in the Leave Application.

27.  Thus, the Board did consider the danger and threats the applicant would face in his country should he be deported, but reached the conclusion that the applicant was not entitled to non-refoulement protection.  The omission in considering BOR 2 Risk does not matter as BOR 3 Risk was considered and found not in the applicant’s favour.

28.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.

29.  The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.  Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.

Conclusion

30.  For reasons aforesaid and in the absence of any good reason for the very substantial delay in making the Leave Application, this court refuses to extend the time for making the Leave Application.

31.  The Leave Application is therefore dismissed for being made out of time and having no merits.

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