|
HCAL 694/2019
[2022] HKCFI 2708
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 694 of 2019
| BETWEEN |
|
|
|
Khan Muhammad Shawaiz |
Applicant |
|
and
|
|
|
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
|
Putative Respondent |
|
and
|
|
|
Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 21 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”).
2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 national of Pakistan. He entered Hong Kong illegally on 15 June 2014 and was arrested by the police for illegally remaining on 16 June 2014. On 30 December 2014, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the Pakistani police for a false murder case and by the family members of the victim.
5. According to the applicant, he was a Sunni Muslim and, on 15 November 2013, he attended a Friday prayer. On that date, there was a rally organized by Shia Muslims. The two groups clashed and, in self-defending himself, the applicant hit someone with a wooden stick. Later, he learnt that the Shia Muslims set fire on their mosque and one of his friends was killed. The day after the clash, the police visited his house and wanted to arrest him for suspected murder as the person he hit in the clash died. The victim’s family members also pressured the applicant’s family to turn him in. He then relocated to another village but heard about the shooting incident outside his family home. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraphs 7 to 28 of the Notice of Decision dated 31 August 2015 by the Director (the “Director’s First Decision”).
The Director’s Decisions
6. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk on the basis that the level of risk of harm was assessed to be low. In elaboration, the Director found that (i) there was no evidence showing that the Pakistani police had filed any false charge against him or the first initial report would cause any unfairness in the investigation against him [35]-[36]; (ii) there was no evidence showing that the victim’s family had ever contacted, or even threatened him [37]; (iii) state protection would be available to him [39]-[42]; and (iv) internal relocation was a viable alternative [43]-[46].
8. In the Notice of Further Decision dated 18 October 2017, the Director also gave reasons for dismissing the applicant’s claim on BOR 2 risk as it was found that his right to life would not be violated if refouled (the “Director’s Second Decision”).
The Board’s Decisions
9. The applicant first appealed the Director’s First Decision to the Board. However, the applicant failed to attend the scheduled oral hearing on 16 August 2016. After several failed attempts to contact the applicant, the Board issued a letter to the applicant’s last known address asking him to provide an explanation for the absence within 7 days. Nevertheless, the applicant failed to do so. On this premise, the Board proceeded to determine his claim on paper [4].
10. Having considered the evidence, the Board made the following findings. First, the applicant’s alleged injuries failed to attain a sufficient level of severity [12]. Secondly, the injuries were not inflicted by the state actors [13]. Thirdly, after reviewing the country of origin information, the Board considered that internal relocation was viable for the applicant [16]-[21]. Independently, the Board found that the applicant’s claim lacked credibility as his delay in seeking protection in Hong Kong further undermined the truthfulness of his claim, which was already found to contain bare assertions [33]-[35]. For these reasons, the Board rejected his claim on Torture risk, BOR 3 risk and Persecution risk and dismissed his appeal against the Director’s First Decision.
11. On 23 February 2018, the applicant filed his notice of appeal/petition against the Director’s Second Decision, which was late by nearly 4 months [3].
12. The Board considered his explanation of an elbow injury and rejected on the basis that he did not provide any medical reports in support and that he did not elaborate why the alleged elbow injury would prevent him from lodging the appeal on time [5]. It also rejected the applicant’s reason of psychological or psychiatric disability affecting his memory as he could not explain why he would only recall after four months [6].
13. On the basis of lack of reasonable excuses for the delay, the Board, by its Second Decision, refused to exercise its discretion in allowing the late filing.
Application for leave to apply for judicial review of the Board’s Decision
14. The applicant has filed Form 86 dated 12 March 2019 for leave to apply for judicial review of the Board’s Decision.
15. In his affirmation in support of his application, the applicant enclosed the Director’s Decisions without setting out any ground.
DISCUSSION
16. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
17. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
18. This issue in question is whether the Board was entitled under the law not to extend time for the applicant to file his notice of appeal against the Board’s Second Decision. Viewed from the facts as stated on the Director’s Second Decision, it is clear that the Board was justified not to extend time for the applicant to file his notice of appeal late.
19. There is no valid reason to challenge the Board’s Second Decision.
20. The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
21. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
22. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss his application.
Dated the 2nd day of September 2022
| |
(M.O. WONG)(Ms)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 2nd September 2022
Khan Muhammad Shawaiz
Applicant’s ref. no:
Nil.
|
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2nd September 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2216/15/9/69/P615; BOR 1116/18/2/4/P287
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 606/15 (Formerly RBCZ 10396/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
|