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

HCAL 1795/2019

[2024] HKCFI 2459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1795 OF 2019

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JUDGMENT

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THE APPLICATION

1.  In Form 86, the applicant applied for leave to apply for judicial review of the Director’s Decision without reference to the date of it and the Board’s Decision as described in the paragraph 2. His application in respect of the Director’s Decision fails in limine and must be dismissed as the Director’s decisions had been determined by the Board already[1].

2.  I shall therefore consider the Decision dated 27 October 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office on the BOR 2 risk (“the Board’s 2^nd Decision”). Since the issue of BOR 2 risk relies on the facts of the case, I shall also take into account of the Board’s decisions in respect of the other applicable risks, which were dealt with in the Board’s 1^st Decision.

3.  His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[2], which expires on 27 January 2018. His application was filed on 28 June 219, which is late for more than 1 year and 5 months. This issue will be dealt with below.

4.  The applicant asked for a hearing. However, he was absent at the hearing on 2 September 2024. I shall deal with his application on paper.

5.  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

6.  The applicant, aged 39, is a Pakistani. He entered Hong Kong illegally on 4 September 2009 and was arrested by the police on the same day. The applicant lodged a torture claim on 7 September 2009. The claim was made on the basis that, if refouled, he would be harmed or even killed by his uncle and cousins due to a land dispute. 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.

7.  According to the applicant, his father bought a piece of land (“the land”) in around mid-2007, which was adjacent to the land owned by his uncle. The applicant believed that his uncle’s family had connection with the mayor in his locality because he often saw them hanging around. In around late 2007, when the applicant and his father intended to erect a wall as demarcation of boundary, his uncle’s family claimed ownership of the land and had a fierce argument with them. Later that day, the applicant’s two cousins together with four unknown men assaulted the applicant at his home (“the assault”). Although his family reported the assault to the police, they did not file his case as they were told by the mayor not to take any action.

8.  After a few days, the applicant was arrested for attacking his cousins. He was released a day later after bribing the police. Thereafter, his uncle’s family harassed the applicant’s family for 10-15 days, demanding the handover of either the land or the applicant. Although the land was under his father’s name, the applicant believed that he was targeted because he would inherit the land soon and was the one who confronted his cousin in the assault.

9.  Starting from late 2007, the applicant hid himself at places of different friends. As the applicant believed that it would be a matter of time before his uncle’s family found him, he arranged with an agent to leave for United Arab Emirates on 3 May 2008. The applicant returned to Pakistan on 30 June 2008 because he was only issued with a two-month visa, after which he relocated between places of different friends. He met his uncle’s family occasionally when he returned home, during which there would be an exchange of foul language. Eventually, upon the arrangement of an agent, he left Pakistan for China on 21 August 2009 and sneaked into Hong Kong from Shenzhen on 4 September 2009.

10.  While in Hong Kong, the applicant learnt from his family and friends that his uncle and cousins had asked for his whereabouts. Meanwhile, although the applicant’s family proposed to resolve the land dispute through negotiation, such proposal was turned down by his uncle’s family.

11.  The applicant considered internal relocation not viable because his uncle had already located his friends’ places so that he could no longer stay with them. Furthermore, the applicant believed that his uncle had connections everywhere within Pakistan.

12.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 13 March 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

13.  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”).

14.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. The Director found that (i) the low intensity and frequency of past ill treatment from his uncle and cousins indicated the unlikelihood of future risk of harm upon his return to Pakistan [12]-[16]; (ii) state protection would be available to him [17]; (iii) internal relocation would be viable [18]; (iv) the claimed supporting documents, even if provided, would not advance the applicant’s claim [19] and (v) the applicant’s case failed to meet any of the requirements under BOR 3 risk [21]-[23], Persecution risk [24]-[28] or Torture risk [29]-[31].

15.  In the Notice of Further Decision dated 16 March 2017, 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 Decisions

16.  The applicant appealed the Director’s 1^st Decision to the Board. On 11 November 2015, the Board conducted an oral hearing. Both the applicant and the Director were legally represented.

17.  The Board noted that the dispute concerned was private in nature with no evidence of involvement from the Pakistani authorities [7]-[9]. The claimed injury suffered by the applicant also had not reached the requisite level of severity [10]-[12]. Furthermore, state protection and internal relocation would be available according to the country of origin information [16]-[20].

18.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 3 risk or Persecution risk [5]-[13], [21]-[31]. In any event, the Board considered the applicant dishonest and that he was not a genuine claimant [35].

19.  The applicant’s appeal was therefore dismissed and the Director’s 1^st Decision was confirmed (“the Board’s 1^st Decision”).

20.  The applicant also appealed the Director’s 2^nd Decision to the Board. Based on the reasons in the Board’s 1^st Decision, the Board dismissed the applicant’s appeal and confirmed the Director’s 2^nd Decision (“the Board’s 2^nd Decision”).

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

21.  The applicant has filed Form 86 dated 28 June 2019 for leave to apply for judicial review of the Board’s Decision.

22.  In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s 2^nd Decision.

DISCUSSION

23.  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. I shall consider the merits of the applicant’s case.

24.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

25.  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.”

26.  The applicant did not seek leave for judicial review of the Board’s 1^st Decision, which has then become final. The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

27.  After the hearing the applicant sent to the Court a statement in which he said that there was no translation for the determination of the Director and the Board. This is not a valid ground to challenge the Board’s 2^nd Decision as held by the Court of Appeal. The applicant has not raised any valid ground to challenge the Board’s findings of the facts of the case. There is no reason for this Court to interfere with the Board’s 2^nd Decision.

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 2^nd Decision.

DISPOSITION

29.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss his application.