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

HCAL 190/2019

[2022] HKCFI 956

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 190 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 20 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application filed on 21 January 2019 is late for about 6 months. I shall deal with this issue below.

2.  The applicant first asked for a hearing, but subsequently called the Court to say that he would not attend and asked the Court to deal with his application on paper.  I shall deal with his application on paper.

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

The applicant

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 13 May 2012 and was arrested on the same date.  On 16 May 2012, he lodged a torture claim which was rejected on 9 November 2012.  However, the applicant failed to report recognizance and absconded since 16 October 2012.  On 10 March 2014, he surrendered to the Immigration Department.  On 12 March 2014, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by members of Pakistan Muslim League – N (“PML-N”).

5.  According to the applicant, his father used to be an influential member of PML-N but later joined the Pakistan People’s Party (“PPP”).  In 2011, the PML-N askd his father to rejoin them to boost their chance in the election.  Upon his father’s refusal, the PML-N members threatened to torture the applicant and his father.  In August/September 2011, the applicant and his father were attacked by three unknown males, whomhe claimed to be from the PML-N, with wooden sticks.  The applicant suffered injuries and received medical treatment.  At the end of 2011, another incident happened, during which two PML-N members attempted to shoot the applicant with pistols.  Out of fear, he fled to Hong Kong for protection.  Details of the applicant’s claim were set out at paragraph 15 of the Notice of Decision dated 16 August 2016 by the Director (“the Director’s First Decision”) and paragraph 9 of the Board’s Decision as described below.   

The Director’s Decisions

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

a.       Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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”); and

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”).

7.  By the Director’s First Decision, the Director refused the applicant’s claim on the grounds of BOR3 risk and Persecution risk. The Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [20]; (ii) state protection was available to him [21]-[26]; and (iii) internal relocation was an option open to him [27]-[32].  By a Notice of Further Decision dated 8 August 2017, the Director also rejected the applicant’s claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to support that his right of life would be violated upon his return. 

8.  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.  

The Board’s Decision

9.  The applicant appealed the Director’s Decisions to the Board.  An oral hearing was held on 1 March 2018 for his appeal, during which the applicant gave evidence to clarify his claim with the assistance of an interpreter [7]. Before the Board, the applicant provided further information that his father had been staying in the home village prior to his death in 2014 and he had no contact with his family [11].

10.  Having considered the evidence, the Board found the applicant’s claim to be untruthful.  For example, the applicant was unable to recognize the attackers but insisted that they were from PML-N; his flee to another village alone without his father did not sit well with the claim that his father was also a target of the PML-N; the applicant was unable to provide details of the attacks [13].  In assessing the individual ground, the Board further found that the applicant’s father was in fact the target of PML-N instead of the applicant and thus there was no reason, let alone any logical ones, to believe that the applicant would be in danger [19].  In any event, state protection and internal relocation were available to the applicant [19(g)-19(l)].  For these reasons, the Board rejected the applicant’s claim on the applicable grounds and dismissed his appeal.    

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 21 January 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he set out the following grounds.

(1)   He was not legally represented at the hearing and was not legally aided for his hearing.

(2)   The hearing bundle was given to him just a few days before the hearing. The contents are in English. He did not have sufficient time to prepare for the hearing.

(3)   The Board did not notify him by phone although he had asked it to do so.

(4)   He was confused of what happened at the hearing. He had given the answers honestly. The Board was wrong to question his credibility.

(5)   The Board had relied upon source of news which is not officially recognized and it also relied on outdated cases.

(6)   There was no screening for the BOR 2 risk.

DISCUSSION

13.  As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

16.  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.”

17.  The above grounds do not assist his application. If he considered that there was not enough time for him to prepare his case, he could have told the Board and asked for an adjournment of the case. In any event, the Board’s Decision did not record that he had made a request or showed that he was confused. He had answered the Board’s questions. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22]. There had been a screening process for his claim, which covers all the facts. There is no requirement under the Ordinance that another screening process has to be done for the BOR 2 risk. He was given the chance to supply additional information to the immigration officer. But he did not respond to the immigration officer’s request. There is no obligation on the Board to contact him on the phone. The other grounds are simply his opinions and comments without evidence in support of them.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

20.  I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review.  Accordingly, I dismiss his application.

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