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

HCAL 2445/2018

[2020] HKCFI 1733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2445 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 5 March 2018 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 5 March 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 28 November 2019.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Court Form 86 is amended by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is a Pakistani national. He came to Hong Kong on 4 February 2007 illegally through China and was arrested by police on 26 June 2007. He lodged a torture claim on 14 July 2007. He had committed immigration offences in Hong Kong and was convicted and sentenced to imprisonment. On 20 May 2013, he withdrew his torture claim application and requested to return to Pakistan. He was released on recognizance. But he did not return to Pakistan. He was again arrested by police on 17 September 2015 for the offence of using another person’s identity card and was convicted and sentenced to 15 months’ imprisonment. He lodged his non-refoulement claim by way of written signification dated 16 October 2015.

5.  He claimed that if refouled, he would be harmed or killed by people of the Pakistan People’s Party (“PPP”).

6.  In 2004, he had a dispute with Agent Mehmood, who was associated with PPP and had received agency fee from him for service of getting him a job in Italy. Agent Mehmood failed to do so. He asked for return of 530,000 Pakistan Rupees from Agent Mehmood, who refused to return the money to him. Agent Mehmoon was annoyed by his pursuit for the money. Agent Mehmood, his uncle, Nazir and his uncle’s son, Javed assaulted the applicant inside Nazir’s shop. He was injured on his left elbow, left middle finger and left forearm. He reported to police. They did not take up the matter. When he pressed for the return of his money, Agent Mehmood, Nazir and Javed son attacked him. Javed stabbed him with a knife on his thigh and he hit Javed’s head with a wooden stick. They even fired shot guns outside his home. He and his family moved to live in other areas for several months. Later, his family moved back to his own home. He left Pakistan for China, leaving his family behind. He then sneaked into Hong Kong.

The Director’s Decisions

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

a.risk of torture under Part VIIC 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”).

8.  By Notice of Decision dated 26 August 2016 (the “Director’s Decision”) and Notice of Further Decision dated 28 June 2017 (the “Director’s Further Decision”) collectively called (the “Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that his suffering did not attain a minimum level of severity [48]; that there was no government official involvement [49]; state protection was available to him [74] and internal relocation was an option open to him [78]. The Director also held in the Director’s Further Decision that he failed to establish BOR 2 risk.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decisions. In the Board’s Decision, the Adjudicator reported that he did not attend the hearing and the Board wrote to him requesting an explanation. He provided no explanation.

10.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

11.  The Board considered the applicant’s evidence and found that the immigration officer’s interview with him was very brief and the Adjudicator would like to ask him questions closely in order to establish the facts of the claim. However, he was unable to do so because the applicant was absent, without any reason or explanation. For this reason, the Board concluded that no credence could be attached to his evidence [35]. It only accepted that he was a national of Pakistan, but beyond that it concluded that he had not established any of the facts he had asserted [36].

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 2 November 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he said that he was not satisfied with the Board’s Decision. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.  The applicant’s application is late as he failed to file Form 86 within three months from the date of the Board’s Decision. In Re Kwok Cheuk Kin v Leung Chun Ying [2018]HKCA 419, 23 July 2018, §28, the Court of Appeal held that the applicant cannot proceed with the application for leave for judicial review without extension of time for him to file his application out of time. In considering whether time should be extended, this Court has to consider the merits of his case to see if he has a reasonable prospect of his intended judicial review.

15.  The applicant appeared before me and he confirmed that he was treated fairly when he appeared before the immigration officer. He further explained that one day before the hearing of the appeal, he was arrested by police and charged. He was convicted of an offence and was sentenced to 16 months’ imprisonment. That is why he was unable to attend the hearing before the Board. However, he did not explain why he did not receive the Board’s letter requesting him to explain why he was absent before the Board.

16.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.  The Director had considered the facts of the case and did not challenge the veracity of the applicant’s evidence. Based upon the facts as he alleged, the Director came to the conclusions set out above and rejected his application. The Board considered that the immigration officer’s treatment of the evidence was not satisfactory. It wanted to subject his evidence to cross-examination, which goes to the credibility of his evidence.

18.  Even if his evidence were acceptable to the Board, the Board rejected his claim based upon the reasons in paragraph 11 above. The Board did not challenge the Director’s findings on the issues of the applicant’s suffering not meeting the minimum level of severity, state protection or internal relocation being available to him. Such reasons remain valid reasons for rejecting his claim.

19.  In the circumstances, the applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

20.  I therefore refuse to grant extension of time for the applicant to apply for leave for judicial review of the Board’s Decision. 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