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

HCAL 1564/2020

[2023] HKCFI 3222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1564 of 2020

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 the Applicant being absent in open court;

1.  Stay under Section 15 and Regulation 7A of the Legal Aid Ordinance lifted;

2.  Extension of time to apply for leave for Judicial Review be refused; and

3.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 27 July 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 28 November 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 December 2018 (the “Notice”).

2.  The Applicant is a Pakistani national. Upon his arrested on 24 February 2016, he claimed to have entered Hong Kong illegally on 20 February 2016. On 26 February 2016, he raised a non-refoulement claim. 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]. His claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.

3.  The leave application was filed 7 months and 29 days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made almost five months out of time. Leave for filing the leave application out of time is required.

4.  In AW and Director of Immigration and William Lam[5], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[6]. The delay in this case is so substantial that leave may be refused on this ground alone, unless the Applicant has a reasonable and credible explanation for the delay. No explanation had been given by the Applicant for the delay. Nevertheless, out of abundance of caution, the Court also assessed the prospect of success in the proposed judicial review.

5.  The Applicant applied for legal aid on 28 September 2023. The usual legal aid stay of six weeks expired on 2 November 2023. An oral hearing on 20 November 2023 was therefore scheduled for hearing the leave application and argument as to whether the legal aid stay should be lifted, if by then his legal aid application has not been determined.

6.  The Applicant did not appear at the hearing. Notice of hearing had been served at his address as stated in the Form 86 and at his address as last reported to the Immigration Department. The Notices have not been returned through the post. There is nothing to suggest that the Applicant has not received either of the Notices or had moved. Having considered the nature of the application, the issues raised, the Decision, the Notice, the papers, and all the circumstances, the Court considered the application may be justly determined on paper without an oral hearing.

7.  The Applicant has a history of defaults. He did not appear at the hearing before the Board and gave no explanation for his absence. Again, he did not appear at this hearing. He did not prosecute the review regularly. He is late in making this leave application. He made the leave application in July 2020, but it was not until September 2023 that he applied for legal aid. The way he conducted these proceedings shows that he has no interest in his non-refoulement claim or the proceedings arising therefrom and the present leave application is just another abuse of proceedings with the motive of delaying his refoulement. Having viewed all the documents, this Court is satisfied that here are no complicated legal or factual issues raised in the non-refoulement claim and in the leave application and that the Applicant will not be prejudiced for want of legal representation. The Applicant had three years and four months to prepare for this leave application. He had a stay of 53 days since his legal aid application. Accordingly, the Court considered it appropriate that the legal aid stay be lifted and proceeded to determine his leave application in his absence. Shortly before this Form CALL-1 was issued, the Court received the memorandum from the Director of Legal Aid dated 1 December 2023 that the Applicant's legal aid application was refused.

The Applicant’s case

8.  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. In gist, he claimed that he would be harmed or killed by his girlfriend’s family, if returned to Pakistan.

9.  The Applicant was born in Gujranwala, Punjab, Pakistan, now aged 33. He had received education up to Grade 7 and had worked as a labourer in a soap company. He belonged to the Rajpoot family while his girlfriend belonged to the Butt’s family. The two families were engaged in a family feud.

10.  He came to know his girlfriend in around June 2015 and they fell in love soon afterwards. In October 2015, he took his girlfriend to the house of his friend, who was out of town, to celebrate her birthday. One of his girlfriend’s brother saw them and followed them. Once they were inside the house, someone knocked on the door. The knocking turned into loud banging. As the Applicant and his girlfriend ran out from the back door, they found they were ambushed by his girlfriend’s brother and eight other men. They attacked the Applicant with metal rods, leading to a fractured right shoulder, a large cut on his left forearm, bruises on his right arm and a cut on his left eyebrow. The assault lasted for around 10 minutes until the assailants left thinking he was dead. The Applicant returned home. He was taken to a hospital, where he was hospitalised for 8 to 10 days. After that he recovered at home for three months.

11.  Two days after the attack, his girlfriend’s brother and the eight men, showed up at the Applicant’s home and threatened to kill him. The Applicant did not report this incident to the police because his girlfriend’s brother threatened to attack him again if he made a report.

12.  At the end of December 2015, the Applicant was assaulted by his girlfriend’s brother and two other men while he was going to a hospital. This assault resulted in a head injury and a bleeding nose which took around 3 to 4 days to recover. Again, the Applicant refrained from reporting the incident due to fear of retaliation.

13.  Fearing for his safety, the Applicant’s family arranged for the Applicant to go to Mainland China on 16 February 2016. From there, he sneaked into Hong Kong. He did not believe relocation within Pakistan feasible because his girlfriend’ family would be able to locate him. He also had no confidence that the Pakistani police would protect him.

The finding of the Board

14.  The Applicant did not attend the hearing scheduled for his appeal and did not respond to the Board’s request for an explanation and notice of intention to determine the appeal in his absence. Hence, the Board determined his appeal in his absence. It found his evidence in his NCF and at the screening interview inconsistent and unreliable. The following are the more significant inconsistencies.

15.  In his answer to Question 35 in the NCF, the Applicant said he arranged his girlfriend’s birthday party at his friend’s house. Then, he went on and said he invited his girlfriend to celebrate his birthday. When asked to clarify during the screening interview whose birthday was being celebrated, the Applicant said it was his birthday. But his birthday as stated by him in his NCF was 14 August 1990 and not a date in October.

16.  The Applicant was unable to provide details as to how the two families were strongly against each other (Question 5 in the interview).

17.  He was unable to answer the immigration officer’s question as to how he knew his girlfriend’s brother saw him and his girlfriend in the taxi and followed them to his friend’s house (Questions 7 and 8 in the interview).

18.  The Board found his story about birthday celebration incredible because in answer to Question 12 and 13 at the interview he said there were other guests at the party but had left one or two hours before the attack incredible.

19.  The Board found his account about the first attack implausible. In his NCF, the Applicant said as soon as he entered the house, there were knocking and banging on the door; and when they ran out via the back door, he found his girlfriend’s brother and eight men waiting for him.

20.  In his NCF, the Applicant said he was attacked twice, once in October when celebrating his girlfriend’s birthday and once in December when he was going to the hospital. That is inconsistent with his answers to Questions 23 and 25 during the interview when he said he had not been harassed while he was in hospital or during the three months while he was recovering at home.

21.  He said in his answer to Question 27 at the interview that he did not make a report to the police about the assault because two days after the attack, his girlfriend’s brother visited his home and threatened to attack him again if he made a report. The timing of this threat is inconsistent with his evidence in the NCF that he was hospitalized for 8 to 10 days after the attack.

22.  The Board found the Applicant’s evidence relating to the facts on which his claim was based inconsistent, speculative and incredible. It was not satisfied even to the low standard required that the Applicant had been assaulted and threatened by his girlfriend’s brother and members of his family. It could not see any real chance that he will be harmed by his girlfriend’s brother and family members or otherwise ill-treated, if he is refouled.

23.  In conclusion, the Board found the Applicant had failed to prove (1) that he suffered ill-treatment which meet the definition of ‘torture’ under Section 37U of the Immigration Ordinance to entitle him to claim protection under Torture Risk ground; (2) that he suffered ill-treatment that attained a minimum level of severity and that he faces a genuine and substantial risk of being subjected to cruel, inhuman, degrading treatment or punishment if he is returned to Pakistan to entitle him to protection under BOR 3 Risk ground; (3) that he had a well-founded fear of being persecuted for a reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol; and (4) that there is any risk of violation to his non-derogable right under BOR 2 Risk ground.

The legal principles applicable to judicial review

24.  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[7]. Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

25.  The Applicant did not put forward any grounds for judicial review in his Form 86. In his supporting affirmation, he reiterated that he is not satisfied with the Decision and that he could not return to his home country because his life will be in danger in Pakistan. The essence of the Applicant’s complaint is that he disagreed with the Board’s finding of fact that he will not face any real harm or risk of harm on his return to his home country. In effect, he is seeking to challenge the Board’s finding of fact, which is not permissible. In the absence of proper 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.

Discussion and conclusion

26.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Applicant did not attend the oral hearing. Despite having been served a notice pursuant to Section 15 of Schedule 1A of the Immigration Ordinance requesting for his explanation for his absence and informing him the Board’s intention to determine his appeal/petition in his absence, he did not offer any explanation. He bears the burden of proving his claim, albeit to a very low standard. He has the duty to attend such hearing and answer the questions of the Board. He did not which made it necessary for the Board to determine his claim in his absence. The Board found his evidence inconsistent, unreliable and incredible. It gave full reasons for its finding. On the basis of that finding, the Board further found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM. Basically, the Applicant failed to discharge his burden of proving his fears and risks. This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding 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 does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

27.  For the above reasons, stay under Section 15 and Regulation 7A of the Legal Aid Ordinance is uplifted; extension of time to file the leave application and leave to apply for judicial review are refused.

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