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HCAL 1034/2019
[2022] HKCFI 2338
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1034 of 2019
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Ayub Gohar |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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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 To:
Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 14 February 2019 (the “Decision”). In the Decision, the Board accepted the Applicant’s application to withdraw his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 30 October 2018 and affirmed the said Notice.
2. The Applicant is a Pakistani national, now aged 28. He entered Hong Kong on 3 May 2016 illegally and surrendered to the authorities on 18 May 2016. On 29 September 2016, he raised a non-refoulement claim.
3. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 30 October 2018, the Director rejected his claims under all four applicable grounds.
4. He appealed to the Board against the decision of the Director in the Notice. By its Decision dated 14 February 2019, the Board allowed the Applicant’s application to withdraw his appeal. On 16 April 2019, he applied for leave to apply for judicial review of that Decision.
5. The subject matter of the Applicant’s application for leave to apply for judicial review is the Board’s Decision of 14 February 2019 allowing his own application to withdraw his appeal before the Board. The focus of this application is the facts surrounding and leading to the making of that Decision and the propriety of that Decision. Thus, for the purpose of this application, there is no need to deal with the Notice. Consideration of the Notice will only arise if the Applicant succeeds in his application for leave to apply for and in the subsequent judicial review of that Decision. The facts surrounding the Applicant’s non-refoulement claim and the decision in the Notice are not the subject matter of this application. Those facts will only be briefly mentioned as part of the background.
The Applicant’s case for non-refoulement protection and the Director’s decision in the Notice
6. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.
7. The Applicant was born in Pakistan. He is single. He used to live with his family in Pakistan. He had received seven years of formal education and has seven years’ working experience as a restaurant cook and later as one of the partners in a restaurant.
8. Since the operation of the restaurant, his paternal uncle had been paying a gangster (“Bashir”) protection money. Bashir was also said to be a member of the Muttahida Qaumi Movement (“MQM”) and had good connections with the government and support of the police.
9. The Applicant and his paternal uncle stopped paying Bashir any money towards the end of 2015 because of losses in the restaurant. Sometime later, Bashir and four MQM members went to the restaurant to look for the Applicant but he was not there at that time. Bashir opened fire at the restaurant to threaten him but unfortunately shot and killed his uncle.
10. The Applicant also claimed that the son of his paternal uncle, Mushtaq blamed him for the death of his father. Mushtaq believed the Applicant made the decision to stop paying protection money, which led to the shooting by Bashir. Mushtaq threatened to kill the Applicant over phone. The Applicant believed that Mushtaq had hired some people to kill him.
11. The Applicant fled to Lahore City. He stayed in a hotel for one and half months. He moved from place to place upon hearing that Mushtaq had learnt of his whereabouts in Lahore. He did not encounter Mushtaq in Lahore City. He met a travel agent in Lahore who arranged his journey to Hong Kong.
12. The Applicant did not believe the Pakistani police would protect him because they were in collusion with the MQM. He also claimed that the Pakistani authorities, such as the National Anti-corruption bureau, cannot help him as they are corrupt and would only take actions after receiving bribes. He claimed that internal relocation would not be viable because the MQM and Mushtaq have extensive network and resources to locate him.
13. The Director found that the ill-treatment suffered by the Applicant did not reach the minimum level of severity as would entitle him to protection under any of the applicable grounds under the USM. He was not also satisfied that the MQM or Mushtaq would still want to harm the Applicant after the lapse of more than three years. On the basis of credible Country of Origin Information, the Director was also satisfied that state protection and internal relocation are viable options to minimise or avoid the harm or risk. Hence, he rejected the Applicant’s claim under all four applicable grounds under the USM.
Decision of the Board sought to be reviewed
14. On 9 November 2018, the Applicant filed a Notice of Appeal/Petition to the Board against the Director’s Notice. In the notice, he claimed:
“I am agree (sic) your all points but I have some problems in Pakistan. I am trying to solve my problems as soon as possible”.
The problems he referred to were apparently the demands for money from Bashir and the MQM and his fear that he would be killed for not meeting their demand and Mushtaq’s threat to kill him in revenge for his father’s death.
15. On 11 February 2019, the Applicant wrote to the Board stating that he wished to withdraw the appeal. He asserted that his “problem is solved now and now [he has] no problem in [his] country”. He confirmed his understanding that the Director’s decision in the Notice which he sought to appeal would remain in force and that his appeal would be finally disposed upon withdrawal of his appeal.
16. On 14 February 2019, the Board wrote to the Applicant as follows:
“The Board is satisfied that your application to withdraw the appeal/petition was freely sought, and that you understood the consequences of the withdrawal. The Board is also satisfied that there is good reason for your proposed withdrawal…namely, that you are safe to return to your home country”.
The Board allowed the withdrawal and confirmed the Director’s Decision dated 30 October 2018. This is the Decision in respect of which the Applicant sought judicial review.
The legal principles applicable to judicial review
17. The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5]. Thus, absent specific grounds or grounds with sufficient particulars, the Court would only focus its attention on the usual challenges of the Decision on the basis of error of law, procedural unfairness and irrationality in the Decision.
Grounds for judicial review
18. The Applicant did not put forward any grounds in his notice of application for leave to apply for judicial review. In his supporting affirmation, he said:
“I am not satisfied with the decision because I have problem in my own country. Please help me to stay in Hong Kong until I have problem in my own country.”
19. In response to the Court’s invitation for submission by letter dated 20 May 2022, the Applicant replied that he needed time for adducing more evidence.
20. At the hearing, after having been explained the above legal principles and the Decision, the Applicant confirmed that he had no complaints about error of law, procedural unfairness or irrationality in the Decision. He said that the situation in his home country had improved when he applied to withdraw the appeal, but then it turned bad when Bashir and Mushtaq learned about his impending return. They demanded extortion money. He repeated his request for time to adduce further evidence.
21. The Decision which he sought to review is the Board’s Decision allowing his application to withdraw the appeal on its finding that his application was freely sought and that he understood the consequences of the withdrawal. The evidence which he sought to obtain is related to facts which occurred after the Decision was made. Even if those facts were proven to be true, they could not constitute valid grounds for challenging the Decision. Furthermore, the Applicant had applied for leave as early as 16 April 2019. Almost three years had since lapsed. He had ample time to obtain any evidence he wished to adduce. The Court was not satisfied that his application for time was genuine or justified and hence refused his application.
22. In the eventual analysis, the Court found that the Applicant has not raised any specific grounds of application for leave to apply for judicial review.
Discussion
23. In the absence of specific grounds of application, the Court 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. The essence of the Applicant’s complaint is that he disagreed with the finding of fact by the Board that his application to withdraw the appeal was freely sought and he understood the consequences of the withdrawal. In effect, he is seeking to challenge the Board’s finding of the above facts.
24. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly applied the legal principles and procedures relating to the Applicant’s withdrawal of his appeal and observed a very high standard of fairness. The finding that the withdrawal was freely sought was the Board’s inference drawn from the surrounding circumstances including, in particular, the Applicant’s letter dated 11 February 2019. Its finding that the Applicant understood the consequences of the withdrawal was based on the Applicant’s own assertion in that letter, which is incontrovertible. These are finding of facts solely within the province of the Board, which the Court on a judicial review will not interfere save when such findings involved error of law, procedural unfairness and irrationality. The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s application for judicial review is not reasonably arguable. His proposed judicial review has no realistic prospect of success.
Conclusion
25. For the above reasons, leave to apply for judicial review was refused.
Dated 3rd day of August 2022.
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( Allen LEE ) |
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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 his solicitors must:
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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)). |
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Sent to the Applicant
on 3/8/2022
Ayub Gohar
Applicant’s ref. no:
Nil. |
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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 3/8/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14331/18/11/174/P2858
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3893/18 (formerly RBCZ 13374/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at para 14(1)
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