ZAIB FARAN AURANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2143/2019

[2024] HKCFI 2813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2143 of 2019

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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 10 September 2018 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 10 December 2018. His application was filed on 26 July 2019, which is late for more than 7 months. This issue will be dealt with below.

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 2 October 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 31, is a Pakistani. He entered Hong Kong illegally on 9 March 2016 and was arrested by the police on the same day. The applicant lodged a non-refoulement claim on 12 March 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by his uncle due to a land dispute. On 23 September 2016, the applicant was sentenced to imprisonment of 15 months for taking up employment while being a person that landed in Hong Kong unlawfully.

5.  According to the applicant, his uncle requested the applicant and his father to surrender their family farmland (“the land”) to him in around September 2015. A month later, the applicant found his uncle and his two cousins on the land. When the applicant asked them to leave, they assaulted him with wooden sticks and threatened to kill him.

6.  In around January 2016, the applicant came across his uncle on the street, who slapped him a few times and threatened to kill him if he dare to go to the land again. Thereafter, the applicant started to receive threatening calls from his uncle around once a week. The threat continued even after the applicant relocated to his friend’s home in Islamabad in late January 2016. Meanwhile, he also heard from his family that his uncle had been to his home around 8-10 times looking for him when he was in Islamabad. As the applicant was worried that he would eventually be found by his uncle, he left Pakistan for China on 21 February 2016 and then sneaked into Hong Kong from Shenzhen on 9 March 2016.

7.  While in Hong Kong, the applicant maintained contact with his family and was informed that his uncle was still after him. The applicant was of the view that the police would not protect him because they took no action when the matter was reported to them previously. He also considered internal relocation not viable because his uncle, being a member of Pakistan Muslim League (Nawaz) (“PML(N)”), could utilise the resources of the party to locate him anywhere within Pakistan.

8.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 28 November 2016 (“the Director’s Decision”).

The Director’s Decision

9.  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”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity and frequency of past ill treatment from his uncle indicated a small future risk of harm upon his return to Pakistan [15]-[16]; (ii) state protection would be available [17]; (iii) internal relocation would be viable [18]; (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [20]-[25], Persecution risk [26]-[31] or Torture risk [32]-[36].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 19 March 2018, the Board conducted an oral hearing.

12.  The Board accepted the applicant’s claim that his family was involved in a land dispute with his uncle’s family and that he was beaten up as a result [32]. He told the Board that his uncle had already possessed the land. The Board however found it unreasonable that the applicant’s uncle would continue threatening him if he had already seized the land and there was nothing that the applicant’s family could do to recover the land [32]-[33], [37].

13.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [39]-[47]. The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

14.  The applicant has filed Form 86 dated 26 July 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, the applicant said he was not satisfied with the Board’s Decision because he had problem in his country. He has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

16.  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.

17.  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 that the Board was wrong because it did not accept his evidence.

18.  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.”

19.  For the reasons the Board has given above, the Board found that the applicant will not be subjected to any of the applicable risks if he returns to his country. The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.

20.  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.

DISPOSITION

21.  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.