SAQIB MEHMOOD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1429/2018

[2019] HKCFI 456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1429 of 2018

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)  An extension of time for the application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board dated 3 April 2017 be refused; and

(2)  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 (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave 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”).

The applicant

2.  The applicant is a Pakistani national. On 2 December 2008, he was arrested by police for illegal remaining in Hong Kong and was referred to the Immigration Department for investigation. On 6 December 2008, he raised a non-refoulement claim with the Director.

3.  He claimed that if he were to be returned to Pakistan, he would be harmed or killed by the family of his paternal uncle Abdul Razaq and Muhammad Fiaz and Abdul’s son Tariq Mehmood because his father refused to transfer his land to them.

4.  In his statements given to the Director and the Board, he said that his uncle wanted to obtain his share of the ancestral property as the value of the land escalated. As a result of the disputes, his two brothers were killed and his father had died of heart attack too. He had once reported his brothers’ death to police. But the police took no action.

The Director’s Decision

5.  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.  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”).

6.  By Notice of Decision dated 10 June 2015 (“the Director’s Decision”) and Notice of Further Decision dated 16 June 2017 (“the Director’s Further Decision), collectively called “the Director’s Decisions”, the Director refused his application for the reason that his non-refoulement claim was not substantiated.

The Board

7.  The applicant appealed the Director’s Decision to the Board. He attended a hearing before the Adjudicator on 26 October 2016.

8.  By Decision dated 3 April 2017 (“the Board’s Decision”), the Board refused his appeal in relation to the Director’s Decision on Torture risk, BOR 3 risk and Persecution risk under RC.

9.  The Adjudicator had considered the applicant’s evidence. See paragraphs 50-65 of the Board’s Decision. At paragraph 66, the Adjudicator concluded:

“I conclude that the Appellant’s story of a land dispute and the violence arising from it may be true, but I cannot be satisfied that it is more probably true than not. However, it is true, there is still insufficient evidence before me to enable me to find a real risk of harm to the Appellant if he is returned to Pakistan.”

10.  The applicant was out of time to appeal against the Director’s Further Decision on BOR 2 risk. He applied for leave for the appeal out of time to the Board. His application was considered by the same Adjudicator.

11.  The Adjudicator was not satisfied with the applicant’s reason that he did not receive the Director’s letter inviting him to submit additional facts for BOR 2 risk claim.

12.  The Adjudicator considered that the applicant’s additional facts as contained in the grounds of appeal in the Notice of Appeal were a re-hashing of the evidence in the hearing before himself on 26 October 2016. He decided that with such evidence, if BOR 2 risk were considered in the same hearing, the applicant would still fail.

13.  The Adjudicator therefore decided that he would not give leave to the applicant for his appeal out of time in relation to the Director’s Further Decision. See §12, 15, 20 and 22 of the Board’s Further Decision dated 13 July 2018 (“the Board’s Further Decision).

Application for leave for judicial review

14.  By Form 86 dated 20 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decisions and the Board’s Further Decision.

15.  He did not ask for leave to apply for judicial review of the Board’s Decision. However, such application would be out of time as the Board’s Decision was delivered on 3 April 2017 whereas his application was lodged on 20 July 2018, which has long passed the 3 months’ limit. Nor did he seek extension of time to apply for leave for judicial review of the Board’s Decision. I can see that the purpose of the applicant’s application is not only for judicial review of the Board’s Further Decision, but also its Decision as well. For practical and case management purposes, I shall treat his application as including for an extension of time to apply for leave for judicial review of the Board’s Decision as well.

16.  In his affirmation in support of his application dated 20 July 2018, the applicant set out the reasons in support of his application below:

(1)  the Director and the Adjudicator had not maintained high standard of fairness in processing his application for non-refoulement claim and their decisions were irrational and unreasonable;

(2)  he did not receive the Director’s letter for additional facts for BOR 2 risk;

(3)  he had not been screened by interview by the Immigration officer for the BOR 2 risk;

(4)  he was not legally represented for his appeal before the Board; and

(5)  it was unreasonable for the Board to refuse to extend time for him to appeal the Director’s Further Decision on BOR 2 risk.

DISCUSSION

The Director’s Decisions

17.  In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power than this Court to make investigations in the matter. The Board had heard his appeal and his applications for leave to appeal the Director’s Further Decision on BOR 2 risk. It had made its decisions accordingly.

18.  I note that the applicant had raised the issue that there had not been any screening interview for BOR 2 risk.

19.  Under section 37ZB of the Immigration Ordinance, Cap. 115 (“the Ordinance”), the Immigration officer has the power to require information from the applicant. Under section 37ZB(1)(b), the Immigration officer has to have an interview with the applicant:

“(1)  After a completed torture claim form is returned by a claimant, an immigration officer—

(a)  may require the claimant to provide the immigration officer with any information or documentary evidence related to the claimant’s torture claim that the immigration officer specifies; and

(b)  must require the claimant to attend an interview to provide information and answer questions relating to the claimant’s torture claim.”

20.  The Immigration officer was not obligated to hold another interview with the applicant under section 37ZB(1)(b) of the Ordinance. I find that there are no exceptional circumstances, for which the applicant can apply for judicial review of the Director’s Decisions to this Court.

21.  Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

22.  For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decisions

23.  The applicant’s non-refoulement claim is obviously a facts sensitive application. The Adjudicator had found the facts of the case. See §8 supra.

24.  Facts are to be found by the Director or the Board. The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§13 and 14:

“13.  Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….”

“14.  Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

25.  Ground (1) is the applicant’s opinion without any evidence to substantiate it. It fails.

26.  Grounds (2) and (5) are considered together. They relate to the Adjudicator’s decision of refusing leave for the applicant to appeal BOR 2 risk Decision out of time, which the applicant considers to be irrational and unreasonable. The Adjudicator had considered the applicant’s additional facts in his Notice of Appeal and he made the decision as he did that the applicant had no additional facts other than those facts in the previous hearing before himself.

27.  Under section 12 of Schedule 1A of the Immigration Ordinance, Cap. 115,

“The Appeal Board may determine an appeal without a hearing if, having regard to the material before it and the nature of the issues raised, the Board is satisfied that the appeal can be justly determined without a hearing.”

28.  The above power relates to the appeal, and a fortiori, it applies to the interlocutory application such as the applicant’s application for extension of time for appeal. The Adjudicator therefore has the power to make his decision of determining the applicant’s application without a hearing.

29.  The applicant is unable to show that the Adjudicator had committed any error in making such decision.

30.  Ground (2) and (5) therefore fail.

31.  Ground (3) has been covered by paragraphs 17 and 18 above. This ground fails.

32.  Ground (4) also fails. The Court of Appeal in  Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.”

33.  I find that the applicant is unable to show any reasonable chance of success in his proposed judicial review.

CONCLUSION

34.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for judicial review. Accordingly, I dismiss his application.

35.  Having considered the Board’s Decision, I conclude that if the applicant applies for extension of time for his application for leave to apply for judicial review of the Board’s Decision, he has no reasonable prospect of success in his proposed judicial review of the Board’s Decision. I would therefore also refuse to grant him any extension of time to apply for leave for judicial review of the Board’s Decision.

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