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

HCAL 1703/2020

[2024] HKCFI 2240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1703 OF 2020

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 22 May 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision^[1], which expires on 22 August 2020. His application was filed on 24 August 2024, which is late for only 2 days. This issue will be dealt with below.

2.  The applicant asked for a hearing. He appeared before the Court on 31 July 2024.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 42, is a Pakistani. He entered Hong Kong illegally on 19 May 2009 and was arrested by the police on 23 June 2009. The applicant lodged a torture claim on 26 June 2009. The claim was made on the basis that, if refouled, he would be harmed or even killed by the Qamal’s family and be put in jail because he was accused of killing Qamal. Upon commencement of the unified screening mechanism, his torture claim had been taken to be a non-refoulement claim and was assessed on all applicable grounds.

5.  According to the applicant, he was a friend of Qamal’s, Usma’s and Usma’s brother’s. In around early 2009, Qamal started a relationship with Usma, which was disapproved by Usma’s brother. As their mutual friend, the applicant arranged a meeting between Qamal and Usma’s brother so that they could reconcile. On the day of the meeting, the applicant left them alone to talk to each other. Yet, a few minutes later, he heard several gunshots and he saw Qamal lying on the ground when he returned to the scene. Qamal was bleeding seriously on his stomach and died eventually. The applicant believed that Usma’s brother had murdered Qamal. He ran away from the scene and fled his hometown. The applicant did not take Qamal to the hospital because he was scared that Qamal’s family might think that he colluded with Usma’s brother to kill Qamal. He also did not report the matter to the police. Several hours later, Qamal’s family filed a case against the applicant with the police, accusing him of murder.

6.  While the applicant was relocating between different places within Pakistan, he learnt from his family that Qamal’s family kept visiting his home 1-2 times per month enquiring his whereabouts and threatening to kill him. The applicant was also informed that the police had been to his home three times looking for him. Two months after the murder of Qamal, the applicant heard from his family that Usma’s brother was killed by Qamal’s family.

7.  The applicant was worried that he would be killed or be put in jail. He therefore left Pakistan for China via Thailand on 12 May 2009. A week later, the applicant’s agent kept his passport and put him on a boat, which brought him to Hong Kong.

8.  The applicant maintained contact with his family while in Hong Kong. He was told that Qamal’s family and the police were still after him. The applicant considered internal relocation not viable because it would be difficult for him to relocate with his whole family and he believed that Qamal’s family could easily locate him. Meanwhile, he had not sought assistance from the police because he was accused of murder and was wanted by them.

9.  Details of the applicant’s story can be found in paragraph 10 of the Director’s Decision dated 19 May 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

10.  The Director considered the applicant’s claim in relation to the following risks:

a. 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”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c. 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”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

11.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim. The Director found that (i) the absence of past ill-treatment from Qamal’s family indicated that his perceived risk of harm was not real nor foreseeable [16]; (ii) there was no evidence showing that he would not receive a fair trial upon return to Pakistan [17]; (iii) state protection would be available to him [18]; (iv) internal relocation would be viable [19] and (v) the applicant’s case failed to meet any of the requirements under BOR 3 risk [20]-[22], Persecution risk [23]-[27] or Torture risk [28]-[30].

12.  In the Notice of Further Decision dated 2 December 2016, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s Decision

13.  The applicant’s appeal for the Director’s 1^st Decision was late and was refused by the Board on 8 October 2015 [2]. Regarding his appeal for the Director’s 2^nd Decision, the hearing was scheduled on 18 December 2019, for which the applicant failed to attend. Notice of the Board’s intention to determine the applicant’s appeal in his absence was then sent to him. As the applicant failed to give any written explanation for his failure to attend the hearing within 7 days, the appeal was determined in his absence [4]-[5].

14.  The Board then proceeded to assess the applicant’s case, bearing in mind the essential of the case and the process was a re-hearing where it was entitled to consider all circumstances of the case and evidence before him. [6]-[7] The Board further took into consideration of a written submission to the Director on 27 September 2016. In this letter, the applicant told the Director that Qamal’s family was demanding monetary compensation from his family for Qamail’s death; the Qamail family with other people went to his house and hurt his wife and his son. He further said that Qamal’s brother had joined a political party and Qamil’s family had a strong connection with the political party and police. The Board had gone further to consider the Director’s 1^st Decision and agreed with the Director that state protection was reasonable available to the applicant. As to the applicant’s fear of criminal prosecution, the Board held that it is only his hearsay information, and even if true, his country will provide fair trial for him. See paragraphs 14-17.

15.  The Board agreed with the Director that state protection would be available to the applicant [14]. Meanwhile, it was only hearsay that a case was filed against him with the police and that there was no evidence showing that he would not receive a fair trial [15].

16.  The Board was not satisfied that the applicant’s case met any of the requirements under BOR 2 risk. The applicant’s appeal was therefore dismissed and the Director’s 2^nd Decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

17.  The applicant has filed Form 86 dated 24 August 2020 for leave to apply for judicial review of the Board’s Decision.

18.  In his affirmation in support of his application, the applicant says he does not agree with the decision of the Immigration Department and it is still dangerous for him to return to his home country.

DISCUSSION

19.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The delay is short. I consider that if there is any merit in his case, this Court should give leave for him to file Form 86 out of time. I shall consider the merits of the applicant’s case.

20.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he did not attend the Board’s hearing because he was sick. He did not go to the Board to explain his absence because he was mentally under stress. He missed his family. He said his enemies are still looking for him and his children dared not go outside for school. However, he said he did not mean that the Board was wrong, but he wants the Court to re-consider his case.

21.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

22.  The question before this Court is whether the Board’s Decision, which confirmed the Director’s 2^nd Decision contravenes any of the applicable legal principles, viz. legality, procedural fairness and Wednesbury reasonableness.

23.  Section 15A of Schedule 1A of the Ordinance provides that the Board may hear the appeal in the absence of the applicant. The determination of the appeal is therefore legal.

24.  Since the Board had given the statutory notice to the applicant to explain his absence in writing and the applicant had failed to respond to the request, the applicant has no reason to complain unfairness in the procedure.

25.  The applicant has a duty to provide all relevant information in support of his claim to the Board under section 37ZA of the Ordinance. The applicant was in breach of his duty as he had failed to attend the hearing before the Board without any reasonable explanation.

26.  The Board had considered the applicant’s case. See paragraphs 14 and 15, supra. The Board might consider the same evidence before the immigration officer under section 18 of Schedule 1A of the Ordinance. Furthermore, the Board might consider the materials provided to the Director and in the Director’s decisions as the Court of Appeal in Re Sri-Wahyuningsih [2023] HKCA 905, Hon Chu VP and Cheung JA, 31 July 2023, held:

18. … The Board ought to and could have made an assessment of the merits of the applicant’s claim and her daughters’ claim separately having regard to, amongst other things, the materials provided to the Director and in the Director’s decision, regardless of the applicant’s absence. …”

27.  The applicant’s reasons for not attending the Board are not supported by any medical evidence. Nor has he raised any valid reason to challenge the Director’s decision, which the Board adopted. In the circumstances, there is nothing that shows the Board’s Decision is Wednesbury unreasonable.

28.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

29.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

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