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

HCAL 665/2020

[2024] HKCFI 1239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 665 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 16 April 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 11 December 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 July 2018 (the “Notice”).

2.  The leave application was filed more than four months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was filed more than one month out of time. Leave to file the leave application out of time is required.

3.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the Applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Merits is usually a very important factor. Where the delay is not very substantial, merits is usually the determinant factor. The Applicant did not give any explanation for the delay in his Form 86 or supporting affirmation. As the delay was not very substantial, for expediency the Court assessed the prospect of success in the proposed judicial review without exploring the reasons for the delay with him.

4.  The Applicant is a Pakistani national. He entered Hong Kong illegally on 12 February 2007 and was arrested on 12 April 2007. He then made a torture claim under the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”) on 5 May 2007 (the “Torture Claim”). His Torture Claim was dismissed by the Director on 27 July 2012. His application for late filing of the Notice of Appeal to the Board was refused on 8 January 2013. Thus, the decision of the Director refusing his Torture Claim became final.

5.  Upon the implementation of the Unified Screening Mechanism (“USM”), the Applicant made a non-refoulement claim on 22 February 2013. His claim was assessed on the three remaining applicable grounds, namely: BOR 3 Risk[2], BOR 2 Risk[3] and Persecution Risk[4]. By his Notice of Decision dated 11 July 2018 (the “Notice”) the Director rejected his claim. His appeal against the decision of the Director in the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

Application for adjournment

6.  By a letter dated 27 March 2024, shortly after the notice of hearing had been served on the Applicant, he wrote to apply for adjournment of the hearing to wait for the outcome of his legal aid application. The Court noted that as at the date of hearing no Memorandum of Notification of an Application for Legal Aid had been lodged by the Legal Aid Department. At the hearing, the Applicant said he needed legal representation and had applied for legal aid two weeks ago. He said he had obtained an application form from the Legal Aid Department, was required to submit certain documents and was waiting for those documents from the Immigration Department and then to lodge them with the Legal Aid Department. From what he told the Court, it is clear that he was only at the preparatory stage of making a legal aid application but had not formally lodged an application. That explains why no Memorandum had been received from the Legal Aid Department.

7.  The Applicant filed his leave application in April 2020, four years ago. He did not make his legal aid application at the same time, but waited until after receiving the notice of hearing. His explanation for the late application was that he knew nothing about the availability of legal aid and was only told about the availability of such services by a friend recently. He came to Hong Kong in February 2007 to seek protection and lodged his Torture Claim in May 2007. Throughout the past 17 years, he had been working on his Torture Claim and non-refoulement claim. He must have been to the offices of the Immigration Department and the Duty Lawyer Service. He must have contacted the local Pakistani, Indian or Bangladesh communities and Urdu or Punjabi speaking communities and met other claimants like himself. It is not credible that he had not heard about the availability of legal aid. The late application is probably an attempt to delay or de-rail the proceedings or had that effect. The factual and legal issues raised by this application revolve around a very narrow compass. Having considered the nature of the leave application and issues raised, the Decision, the papers, and all the circumstances of his leave application, the Court was of the opinion that he would not be prejudiced without legal representation. Accordingly, the Court refused his application for adjournment.

The Applicant’s case

8.  The following account of the Applicant’s case is mainly based on the information in the questionnaire filed for his Torture Claim and the Supplementary Claim Form (“SCF”) prepared by him with legal assistance and the record of his screening interviews in the presence of his lawyer. In gist, he claims he will be harmed by moneylenders upon his return to Pakistan because of his inability to repay his father’s debts owed to the moneylenders.

9.  The Applicant, now aged 35, was born and raised in Punjab, Pakistan. He had received seven years of education and worked as a helper in a fruit stall in 2006. His father borrowed 2.5million Indian Rupees from some moneylenders to start a poultry farm in 2006. After that, his father’s business was “lost” and his father became “mentally retarded”.

10.  The moneylenders visited his home twice. Nothing eventful happened in the first visit but in the second visit, they threatened to kill the Applicant, being the only child in the family. The Applicant did not dare to report the moneylenders to the police because they had threatened to kill his entire family if he did. He also did not believe the police would take any action.

11.  The Applicant fled to Barnala in January 2007 to live with his aunt where he stayed for two weeks. Nothing eventful happened during those weeks. Then, his maternal uncle sent him to Hong Kong on 12 February 2007 via Dubai and China.

12.  His parents went to live with his maternal uncle between 2007 and 2017. His maternal uncle lost contact with them in around 2017. The Applicant believed the moneylenders had kidnapped them. He claimed that in around 2012, the moneylenders had come to his family’s house every month or every fortnight to look for him but they did not cause his family any trouble. In around July 2017, he learnt that the moneylenders had come to his maternal uncle’s house to ask for his whereabouts but they did not cause his uncle any harm.

13.  He does not believe the Pakistani police would help him because the police were corrupt. He does not believe internal relocation would be viable because the moneylenders were wealthy and as one of the moneylenders had links in the Pakistan Muslim League – Nawaz (“PML-N”) which is the ruling party in Pakistan, they could locate him anywhere he moved to in Pakistan.

The finding of the Board

14.  The Applicant testified before the Board. The Board found his evidence to be “evolving, vague and unconvincing”. He knew very little about his father’s poultry business and took not much interest in knowing even the most basic details about the business, such as where and how it was operated.

15.  He did not know much about the loan either and could not even identify the moneylenders. When asked why he apparently had no motivation to find out about these details from his parents or the moneylenders. His response was that his father had mental problems, his mother did not know about the details and had also told him not to speak to other people about the loan. When asked why he did not ask his maternal uncle about the loan when he had lived with his parents between 2007 and 2017, his reply was simply that he did not ask. The Board found it difficult to accept that being the only child of his two elderly and seemingly unwell and vulnerable parents, he would have taken such little interest in finding out these details in order to assist his parents to reach a resolution of their debt.

16.  The Board wondered why, if he genuinely believed his parents had a debt which placed him and his vulnerable parents at risk of harm he would have chosen remained in Hong Kong since 2007, where he has no permission to work and no prospect of sourcing a livelihood to assist his parents to repay. His response was he did not know other than that his uncle had promised his mother to keep him safe and arranged the passage for him. He did not even know where his uncle obtained the money for his trip to Hong Kong. The Board found it hard to reconcile his evidence of his uncle’s concern and contribution to his safety with his evidence that neither of them contacted the other to check on the other’s well-being for around two years.

17.  When the Board asked whether the absence of any news of any approaches by the moneylenders to his aunt in Barnala with whom he had lived in safety for some time and to his uncle in Jalapur Jattan with whom his parents had lived in safety for ten years between 2007 and 2017 indicated that the moneylenders were not interested in pursuing the loans, he advanced new evidence about uncle having been beaten by the moneylenders. The Board had credibility concerns about such sudden departure of his evidence.

18.  The Board had cumulatively significant concerns regarding the truth of the central aspects of his claim and the evidence advanced by him. There are multiple significant anomalies which led the Board to conclude that the central aspects of the Applicant’s claim are not as he claimed. The Board found him to be incredible and dismissed his evidence in its entirety.

19.  As the Board had dismissed the only ground for claiming protection, namely the alleged threats from the moneylenders, it found the Applicant had failed to establish the factual basis to support his claims for protection under any of the remaining three applicable grounds under the USM and dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

20.  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[5].

Grounds for judicial review

21.  The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, the only complaint he raised was that the Board disregarded his dangerous situation. He had been invited by the Court via its letter dated 27 March 2024 to advise the Court of his first language and to file submissions. He responded but did not file any submissions. The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Pakistan. That is not permissible.

22.  In the course of explaining the legal principles in the preceding section to him and exploring his grounds of application, he repeated his need for legal representation and reiterated his fears and risk of harm. He asserted that a few months back the moneylenders attacked his home, harassed his mother and killed his father and that the police did nothing to protect him and his family because PML-N is in power. These are allegations of new facts which occurred after the Decision had been made. These allegations could have no bearing on the Board’s Decision upon its finding that the factual basis of his claim, ie the threats and risk of harm from the moneylender, is not credible.

23.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Discussion

24.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant’s evidence incredible and his case concocted. He had therefore failed to establish the factual basis in support of his claim for protection. As he bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success. Leave to file the leave application out of time is therefore refused.

Conclusion

25.  For the above reasons, leave to file the leave application out of time and the leave application are refused.

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