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

HCAL 2372/2018

[2021] HKCFI 1180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2372 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;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  The Applicant is a Pakistani national.  He departed from Pakistan on 13 August 2009 for China and then sneaked into Hong Kong.  He was arrested by the police on 1 September 2009.   He claimed that his life is at risk as a result of political violence.  He was released on recognizance on 9 September 2009.  He applied for non-refoulement protection. Subsequently, his application was rejected by the Director of Immigration (the “Director”).  He appealed against the decision of the Director to the Torture Claims Appeal Board (the “Board”).  On 23 February 2018, the Board dismissed his appeal (the “2018 Decision”).  It was only until 26 October 2018 that the Applicant sought leave to apply for judicial review of the 2018 Decision and the decision of the Director in his Notice of Decision issued in 2015 and 2017 (respectively the “2015 Notice” and “2017 Notice”).  He is more than five months’ out of time.

Extension of time for applying for leave to apply for judicial review

2.  The court’s leave is required in making an application for judicial review.  Section 21K(6) of the High Court Ordinance provides that where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant leave for the making of the application; or any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

3.  Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  An application made after three months is deemed to have been made with undue delay.  To obtain extension of time for making an application, the applicant has to satisfy the court that there are credible valid explanations for the delay. 

4.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined.  In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(1)  length of delay;

(2)  explanation for the delay;

(3)  merits of the substantive application;

(4)  prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

(5)  whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

Explanation for the delay

5.  The Applicant gave the following explanation for the delay in making the application.  He was arrested by the police in or around March 2018 and was detained since.  He was sentenced to six months’ imprisonment and was discharged from prison on 18 October 2018. Then, he was transferred to the Immigration Department detention facility in Castle Peak Bay Immigration Centre.  During his detention, he was informed by his friend about the letter from the Board enclosing the 2018 Decision of the Board dismissing his appeal.  Then, he made the application for leave to apply for judicial review on 26 October 2018.

6.  According to the information from the Immigration Department, the Applicant was sentenced on 11 April 2018 to ten months’ imprisonment less 20 days’ administrative detention and was discharged on 18 October 2018.  He would have been detained on 22 March 2018, which was about a month after the Decision was issued.  The Applicant’s account was probably untrue.  He had received the Decision a month before he was arrested.  He could have applied for leave to apply for judicial review while in prison custody and with the assistance of the prison welfare officer. He did not have much of an excuse except for the sympathy that he had been in custody and he applied promptly on 26 October 2018 soon after his release.

The background

7.  The Applicant first made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by a written representation dated 3 September 2009 (the “CAT claim”).  His claim was rejected by the Director on 26 April 2013 (the “2013 Notice”).  On 9 May 2013, he appealed to the Torture Claims Appeal Board.  His appeal was dismissed by the Torture Claims Appeal Board on 17 June 2013 (the “2013 Decision”).

8.  In March 2014, a Unified Screening Mechanism (the “USM”) for non-refoulement claims in Hong Kong was introduced.  Under the USM, an applicant for non-refoulement protection would be considered on the following grounds, namely:

(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 (“Torture Risk” which is equivalent to the CAT claim);

(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”) (“BOR 3 Risk”); and

(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 (“Persecution Risk”):

9.  On 29 July 2015, the Immigration Department invited the Applicant to make supplementary claim for non-refoulement protection under the USM and served on him copies of his torture claim materials including:

(1)  the Torture Claim Form;

(2)  the Record of the First Interview;

(3)  the First Notice of Appeal to the Torture Claims Appeal Board; and

(4)  a list of Country of Origin Information material referred in the Notice of Decision of the Torture Claims Appeal Board dated 17 June 2013(“COI”).

In response, the Applicant submitted, through the Duty Lawyer Service, a Supplementary Claim Form dated 24 August 2015.

10.  The Immigration Department conducted a further screening interview with the Applicant on 12 November 2015.  In assessing his application on all applicable grounds other than torture risk ground (which had previously been rejected), the department took into account the above materials and the record of the further screening interview.  By a Notice of Decision dated 4 December 2015, ie the 2015 Notice, the Director rejected the Applicant’s non-refoulement claim.

11.  The Applicant appealed the 2015 Notice and petitioned to the Board.

12.  On 8 June 2017, before the petition was heard, the Immigration Department wrote to the Applicant, stating its intention to further consider his non-refoulement claim with reference to a further ground, namely, Article 2 of the Hong Kong Bill of Rights (“BOR 2”) and invited the Applicant to supply any additional materials which he considered relevant to his non-refoulement claims including his rights under BOR 2.  The Director required him to submit additional information, if any, on or before by 22 June 2017, failing which a further written decision on his non-refoulement claims on any other applicable grounds after taking into account any new facts submitted and all facts submitted previously under the USM will be made, even if he did not produce any relevant facts by that day. The Applicant did not respond.  Then, by a Notice of Further Decision dated 26 June 2017, ie the 2017 Notice, the Director informed the Applicant that he had failed to establish a personal and real risk of his absolute and non-derogable rights under BOR 2 being violated.

13.  By the time the Applicant’s appeal was heard before the Board on 7 September 2017, the Board had before it the 2015 Notice and 2017 Notice.  Hence, the Board considered the Applicant’s claim on three applicable grounds under the USM, namely: Persecution Risk ground, BOR 3 ground and BOR 2 ground.  His CAT claim or Torture claim had been dismissed by the Director in his 2013 Notice and his appeal against the 2013 Notice had been dismissed by the 2013 Decision of the Board on 17 June 2013.  He never sought judicial review of the 2013 Decision.  Thus the 2013 Decision of the Board was final.

The Applicant’s case

14.  The Applicant’s case is that he is a target of political violence and is at risk of being killed by the opponent political party.  He said he had been an active supporter of the Pakistan Muslim League (Quaid e Azam Group) (“PMLQ”), a major political party in Pakistan for around 15 years at the time.  He played an active role in persuading villagers to support the party, putting up posters to promote the party, carrying out administrative work to facilitate the voting process and casting vote during elections.  His father and brother also went with him in promoting the party.

15.  He ran into conflict with Abdul and his associates from the opponent party, Pakistan People’s Party (“PPP”).  On a number of occasions during the election campaign in around February 2008, Abdul threated to kill the Applicant if he did not stop supporting PMLQ and join PPP.  The Applicant did not report the threat to the police because he had also similarly threatened Abdul and his associates.  In the end, PPP won the election.  Then, Abdul started to harass the Applicant and his family who were the only PMLQ supporters in the area.

16.  On 1 April 2008, Abdul and his people armed with guns and other weapons forced into the Applicant’s home looking for him.  The Applicant was not at home.  Abdul and his men beat his father.  They fired their guns into the air and shot his father in the thigh. The neighbours heard the gun shots and came over to stop the assault.  The men left.  The Applicant’s father was hospitalized for 10 to 12 days.  During his father’s hospitalisation, the police came to make some enquiries with the father.  Later, the police asked his father to withdraw the complaint, which the father did thinking he had no choice. 

17.  The Applicant hid himself in Lahore for four to five months.  Then, he went to Mirpur and stayed for another four to five months.  In Mirpur, the Applicant was told by his father that Abdul had filed a complaint against the Applicant, his brother and father accusing them of beating his servant.  This prompted the Applicant to flee Pakistan.  He went to China and then sneaked into Hong Kong.

18.  The Applicant maintained contact with his family.  His father told him that PPP supporters were still asking him for the Applicant’s whereabouts and Abdul said he would not spare the Applicant if he saw him.  The Applicant said his father is now safe as he had withdrawn the complaint against Abdul.  The Applicant said he could not return to Pakistan because the police could do nothing to protect him as PPP is in power.  He said Abdul and his men would kill him and his family if he sought help from the police.  He did not think internal relocation a viable option.

The finding of the Board

19.  The Board accepted the Applicant’s evidence and proceeded to determine his claim under the remaining three applicable grounds on the basis of his evidence.  The Board correctly identified the issues to be whether the Applicant had established to the relatively low standard of proof required that he is likely to be subjected to the ill-treatment he feared and whether or not such ill-treatment would amount to persecution risk, BOR 3 risk and BOR 2 risk.  But in the end, the Board concluded that the Applicant had not made out a case in respect of the three applicable grounds.

20.  To establish Persecution Risk, a claimant has to establish a well-founded fear of being persecuted and his life or freedom would be threatened on account of one or more reasons under the Refugee Convention (“Convention reason”), namely race, religion, nationality, membership of a particular social group or political opinion. However, the Board was not satisfied that the treatment he received amounted to persecution and for a Convention reason. The Applicant’s problem with Abdul started in 2008 before the general elections and he and Abdul threatened one another.  His father suffered a shot in the thigh but Abdul’s party left when the neighbours intervened and there were no incidents of violence thereafter.  The Applicant remained safely in Lahore and Mirpur.  The Applicant suffered no harm, let alone harm of a minimum level of severity as to amount to persecution.  He fled Pakistan merely on his father’s hearsay evidence about a complaint having been filed against him, his brother and his father for beating Abdul’s servant.  His father and brother did not find it necessary to leave Pakistan.  There was no question of state oppression or any evidence that his dispute with Abdul is anything but a local dispute between rival parties which was no difference to his threat to Abdul and his associates.  Though the dispute and threats arose in the context of a general election from a rival political parties, it did not emanate from a Convention reason.   The Board was not satisfied that the Applicant had proved these two necessary elements even to the very low standard required. 

21.  A claimant who wishes to invoke protection against torture or cruelty, inhuman treatment or punishment under BOR 3 Risk ground has to establish two main requirements, ie (i) he would, if returned to the risk state, face ill-treatment which attains a minimum level of severity; and (ii) he would face a genuine and substantial risk of being subjected to such ill-treatment.  On the Applicant’s evidence, there was no suggestion that he had suffered any harm.  His father was shot in April 2008, but there had been no further incidents of violence.  The Board held that the Applicant’s past experiences did not amount to ill-treatment for the purpose of BOR 3.  The Board was not satisfied that there were substantial grounds for believing the Applicant would face a genuine and substantial risk of being subjected to severe ill-treatment, if refouled to Pakistan.

22.  BOR 2(1) provides that:

“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his right to life.”

For the same reasons as above, the Board was not satisfied that the Applicant’s rights under BOR 2(1) would be violated.  The other five provisions are related to sentence of death and genocide.  Those provisions obviously are not engage in the present case.

Grounds of application

23.  The Applicant’s application for judicial review is principally directed at the Director’s 2015 Notice and 2017 Notice.  The main thrust of his complaint is that the Director failed to have proper regard or failed to give proper weight to the Country of Origin Information (“COI”) in his favour and ignored COI about police corruption, abuse of power and favouritism towards the ruling party, PPP.  These grounds are totally irrelevant because while the Decision of the Board is reviewable by judicial process, the decision of the Director in the 2015 Notice or 2017 Notice are not.  This is because there are established procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the two Notices were superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[2].

24.  The Applicant advanced two grounds against the Board.  First, he complained that the Board erred in concluding that the ill-treatment he feared would not amount to Persecution Risk, torture risk (ie BOR 3 Risk) or BOR 2 Risk without giving detailed reasons.  This is a finding of fact by the Board.  The role of the court in judicial review is not to re-assess the non-refoulement claim 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 scrutinise 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[3].

25.  As summarised above, the Board did give reasons.  Basically, the Board accepted the Applicant’s evidence of the incidents he described; but on the basis of his evidence, the Board was not satisfied that the Applicant has made out a case for protection under the three applicable grounds.  The Board dealt with the grounds one by one.  The Board devoted three pages in giving its reasons for the Decision.  Having rigorously examined the Decision and the papers with anxious scrutiny, the Court was satisfied that there were no errors of law, procedural unfairness or irrationality in the Board’s findings.

26.  The second ground is that the Board erred in a similar way as did the Director in failing to give proper weight to the COI in the Applicant’s favour and in ignoring the COI about police corruption, abuse of power and favouritism towards the ruling party, PPP.  The Board noted the Applicant’s complaint about police inaction.  It referred to the COI and bore in mind that Pakistan had long had problems with endemic corruption and under-performance of the police and other government organs.  However, the Board also noted COI referring to recent and

ongoing efforts to put in place strategies and programmes to bring about improvements and that PPP was no longer the ruling party.  In making its Decision, the Board had properly balanced the conflicting COI.  It obviously gave more weight to recent COI suggesting improvements in efficiency and professionalism of the police than earlier COI about police corruption and abuse of power.  The weight to be given to COI is a finding of facts exclusively within the realm of the fact finding tribunal, ie the Board.  All the COI are from credible sources. It was neither unreasonable nor irrational for the Board to give more weight to recent COI than the earlier ones. The Applicant’s concern had been fully addressed by the Board.  There was no procedural unfairness in the Decision of the Board.  The Decision cannot be described as one made as result of error of law.    

27.  Furthermore, it can be seen from the Board’s Decision that the Board found that the Applicant’s fear was unreal.  He had no risk returning to Pakistan.  He had no risk staying even in the same village as does his father.  There was no need to consider state protection or internal relocation.  However, the Board did take the extra mile of considering internal relocation, but not state protection. Thus, the Applicant’s arguments about police corruption, abuse of power and favouritism, which are made in the context of state protection fall away.

28.  Internal relocation was considered by the Board on an “even if” basis.  It was not necessary for the Board’s Decision.  Even if the risks were real, the Board found that it is localised because the Applicant was safe for almost a year in Lahore and Mirpur before he left Pakistan.  The reason for his leaving Pakistan was he heard his father telling him that Abdul had filed a false complaint accusing him, his brother and his father of beating his servant, not because of any threat to his life.  Both his brother and father had no problem continue staying in the village where they were.  The Board also had regard to the fact that the Applicant had been away from Pakistan for 12 years.  PPP is no longer the ruling party.  The Board found it unlikely that anyone would still have any continuing interest in the Applicant or would spent time and resource locating him in a vast and populous country like Pakistan.  There is nothing to suggest the Board had not properly weighed the relevant COI, or that its conclusion was unreasonable or irrational. Besides, internal relocation was not necessary for the Board’s Decision.  This ground also falls away.

29.  In conclusion, the Applicant has no prospect of a successful judicial review on these grounds.  The Court took the extra care of scrutinising the Board’s Decision for errors of law, procedural unfairness or irrationality.  The Board was correct about the burden of proof and had reminded itself that the Applicant only had to meet the very low standard of proof that he is likely to be subjected to the ill-treatment he feared and that such ill-treatment would amount to persecution risk, BOR 3 Risk and BOR 2 Risk.  The Court was of the view that the Board had correctly set out the law and key legal principles relating to the three applicable grounds under the USM.  The Board concluded that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the three applicable grounds.  The Court was of the view that the Board’s Decision was utterly without fault and there were no errors of law, unreasonableness or irrationality in its Decision as regards the Applicant.  As the judicial review has no prospect of success, the Court did not find it necessary to consider prejudice to the Applicant vis-à-vis to the proposed respondent and whether the review would raise any question of general public importance.

Conclusion

30.  The application was out of time by five months.  The explanation for the delay was a flimsy one.  Having fully considered the merits, the Court was of the view that the intended judicial review had no prospect of success.  It would be a futile exercise to grant extension of time to enable the Applicant to apply for a judicial review which is bound to fail. Accordingly, the application is dismissed.

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

[1]  CACV 63/2015, (unreported) 3 November 2015

[2]  [2018] HKCA 549

[3]  [2018] HKCA 524 at para 14(1)