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

HCAL 1241/2018

[2021] HKCFI 541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1241 OF 2018

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 oral submissions by the Applicant 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 23 February 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  The applicant filed his application on 3 July 2018, which is more than three months in accordance with Order 53, rule 4 of the Rules of the High Court (“RHC”).  His late application will be dealt with below.

2.  The did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), 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 Pakistani national.   In November or December 2011, he departed Pakistan for China, from where he came to Hong Kong illegally by boat.  He was arrested and he lodged a non-refoulement claim with the Immigration Department on 12 November 2015.

5.  He claimed that if refouled, he would be harmed or killed by members of the Pakistan Muslim League (Nawaz) (“PML(N)”) because he was a supporter of the Pakistan Muslim League (Quaid-e-Azam) (“PML(Q)”).  He was the second man to Mr. Chaudhary, the head of PML(Q), the ruling party at the relevant time.  Since PML(N) won the election, those people assaulted him from time to time at places where he was.  He was forced to leave his home and resided in his friend’s place.  However, he was followed by the PML(N) and attacked him. On Mr. Chaudhary’s advice, he left Pakistan for Hong Kong.  The details of the incidents are in paragraphs 7 and 8 of the Board’s Decision.

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  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

d.  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 Notice of Decision dated 2 June 2017 (“the Director’s Decision”), the Director refused his claim for the reason that the level of risk of harm from the PML(N) members upon his return was assessed to be low [15]; that state protection was available to him [18] and internal relocation was an option open to him [19].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board on 27 October 2017.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)   The applicant’s evidence on the facts of his case was rejected as being inconsistent and inherently implausible. [45-53]

(2)   The Board was not satisfied that the applicant had discharged the burden of establishing that he faced a real risk of harm that would warrant international protection, now or in the foreseeable future thereafter. [55]

(3)   On the reasons above, the Board rejected his claim on those risks in paragraph 6 above.

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 3 July 2018 for leave to apply for judicial review of the Board’s Decision.  

11.  In his affirmations in support of his application, he said that he was not satisfied with the Board’s decision.

DISCUSSION

12.  As mentioned in paragraph 1, this is a late application. The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14 July 2020, Fok PJ held:

“39. … … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.”

13.  The applicant has not stated in his affirmation the reasons for his delay in filing this application. Order 53, rule 4 of the RHC does not spell out those criteria above in the text. Those criteria are set out in other cases by the courts. The applicant is not legally represented.  I shall, nevertheless, consider the merits of his case to determine whether time should be extended for his application for leave for judicial review.

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  See paragraph 9 above.

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

“13.… … 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.”

16.  ground in support of this application is only his opinion without any evidence or specific in support of it.  It does not assist his application.

17.  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.

18.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

19.  I therefore refuse to extend time for the applicant to file his application 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