HCAL 269/2022
[2023] HKCFI 234
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.
BETWEEN
and
Torture Claims Appeal Board /
Putative Respondent
and
Director of Immigration
Putative Interested Party
Application for Leave to Apply for Judicial Review
Following:
Order by Deputy High Court Judge To :
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 April 2022 for leave to apply for judicial review of the decisions of the Director of Immigration (the “Director”) in his Notices of Decision dated 14 January 2010 (the “2010 Notice”), 2 December 2014 (the “2014 Notice”) and 21 March 2022 (the “2022 Notice”) and the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 28 October 2015, which was in fact dated 29 October 2015 (the “Board’s Decision”). In that Decision, the Board dismissed the Applicant’s appeal against the 2014 Notice.
2. The Applicant is a Pakistani national. He was arrested on 11 January 2010 under the identity of Tufail Asif for being an illegal immigrant. He raised a torture claim by way of written signification on 14 January 2010 (the “previous claim”). The previous claim was assessed under the Torture Risk[1] [2] [3]
3. Five years later, the Applicant surrendered to the Immigration Department on 6 December 2021, claiming to have sneaked into Hong Kong by boat on 1 July 2021. On 3 January 2022 he made a request to the Director (the “request”) for leave to make another claim for non-refoulement protection (the “intended subsequent claim”)[4] . On 13 January 2022, an immigration officer invited him to provide further information and supporting evidence. The officer also advised him of his right to seek legal representation and the availability of the publicly-funded Duty Lawyer Service. The Applicant responded by letter dated 10 February 2022. On 21 March 2022, the Director issued the 2022 Notice refusing his request to file his intended subsequent claim. The Applicant now applies for leave to apply for judicial review of the 2022 Notice.
The Applicant’s case under the previous claim
4. The following account of the Applicant’s case is based mainly on the information in the 2014 Notice submitted by him in support of his application. In summary, the Applicant claims that he would be harmed or killed by Sharbir and his sons because of his love affair with his daughter, Shumaila.
5. The Applicant was born in Tehsil and District Jolalpur Jattan, Pakistan, now aged 41. He is married and has two children currently living in Pakistan. He had received ten years of formal education and has six years’ working experience as a self-employed salesman in a general store.
6. The Applicant alleged that he began a romantic relationship with Shumaila in 2003. He kept that relationship secret as such relationship was prohibited by the Pakistani culture and religion. That relationship was particularly immoral because he was already married and adultery is a criminal offence in Pakistan. That relationship was revealed at the end of 2005. Shumaila’s family was agitated and beat her up severely. Her brothers also threatened to kill the Applicant and Shumaila, if they did not stop seeing each other. But the Applicant continued seeing Shumaila three months after the discovery of their affair. Then four incidents occurred which made the Applicant fear for his life.
7. In the first incident, Shumaila’s brothers found the Applicant and Shumaila chatting. They beat the Applicant with hockey bats. The Applicant suffered nose and mouth injuries. He was treated in a clinic in his village. He did not report the incident to the police as the Applicant believed the police was likely to side with Sharbir who was well connected with a powerful political party.
8. In the second incident, some 15 to 20 people led by Sharbir and his sons went to the Applicant’s shop and beat him with wooden rods for about two to three minutes. They also fired guns in the air. The Applicant suffered bruises. He did not go for medical treatment and did not report the incident to the police.
9. In the third incident, the Applicant was beaten up by Sharbir’s sons when Shumaila went to his village to meet him. They kicked him and fired guns in the air. They also went to his home and threatened to kill him if they saw him again.
10. In the fourth incident, Sharbir’s sons and five or six people suddenly jumped out from a vehicle and beat the Applicant. The Applicant was not seriously injured.
11. The Applicant did not seek police help as he thought the police would not handle family disputes especially when his relationship with Shumaila was forbidden by the Pakistani culture and religion. He thought Shumaila’s family would bribe the police and the police would arrest him. He thought it would be futile to move to other places in Pakistan as Shumaila’s family was wealthy and would hire people to hunt him down and kill him. Out of concern for his safety, he fled to China.
The Director’s finding in respect of the previous claim
12. The immigration officer assessed the Applicant’s claims on the basis of the case as he asserted. He found that Sharbir and his sons had no real intention to harm or kill the Applicant as evidenced by the fact that the Applicant only suffered minor injuries in the four incidents, despite he was outnumbered and Sharbir’s sons had the use of firearm. He also took the view that any intention to seriously harm or kill the Applicant would have dissipated after the lapse of more than eight years since the Applicant’s last contact with Shumaila in July 2006. He therefore considered the Applicant’s risk of harm or of being kill upon his return to Pakistan was low. On the basis of credible Country of Origin Information, the immigration officer was also satisfied that state protection and internal relocation are viable options to minimise or avoid the harm or risk. Applying the law applicable to non-refoulement protection to the Applicant’s case and the above finding of facts, the immigration officer was not satisfied that the Applicant had discharged the burden of proving his entitlement to protection under any of the applicable grounds under the USM. Accordingly, the Director rejected the Applicant’s previous claim.
The Applicant’s case under the intended subsequent claim
13. When the Applicant returned to Pakistan in 2016, Sharbir guaranteed that he and his sons would not harm or kill him. He had no problem during the first six months of his return and started to operate a shop. Then, Sharbir passed away and his sons returned from Italy. They attempted to attack him and damaged his shop. The Applicant sought police assistance. Instead of protecting him, the police detained him in the police station for three days, during which time, the police together with Sharbir’s sons tortured him. After his release, the Applicant took refuge in his friend’s place in another city for four months. During those four months, Sharbir’s sons attacked his house three times and told his family that they would kill him. Between 2019 and July 2021, the Applicant went to China three time and stayed there for one month on each occasion. Then he sneaked into Hong Kong under his present identity.
The Director’s finding in the intended subsequent claim
14. The immigration officer did not accept the Applicant’s claim under the intended subsequent claim for lack of details and supporting evidence. He found the Applicant’s allegation about the attacks by Sharbir’s sons illogical as the Applicant had adduced no evidence that he remained in contact with Shumaila. As the Applicant had withdrawn his appeal against the 2014 Notice and the Board had dismissed that appeal and confirmed the findings in the previous claim which are now final and binding on the Applicant. In particular, it was found in the previous claim that state protection and internal relocation are available to negate or minimise the risk of harm to the Applicant.
15. Most importantly, the immigration officer considered the Applicant’s current fear originated from his love affairs with Shumaila and that the basis of his request for filing the intended subsequent claim is also his fear of harm from Sharbir’s sons which had been considered in the previous claim. He therefore did not accept there had been a significant change of circumstances since the Applicant’s previous claim was finally determined or withdrawn and that the change, when taken together with the other materials submitted in support of the previous claim, would give his intended subsequent claim a realistic prospect of success. Hence, the Director issued the 2022 Notice refusing his request for making a subsequent claim for non-refoulement protection.
The legal principles applicable to judicial review
16. 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[5] .
Grounds for judicial review
17. The Applicant’s grounds of application as stated in his Form 86 are as follows:
“Decision(s) made in respect of my Non-refoulement Claims states all the details of my claim. I would be able to provide a copy of the same to the court upon my release. I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement Claims. The decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.”
18. The Applicant has not given any particulars of the unfairness alleged in respect of any of the decisions sought to be reviewed. The Court could only do the best it can within the judicial review framework to scrutinize the decisions for errors of law, procedural unfairness or irrationality in the decisions.
Leave in respect of the 2010 Notice
19. From the above accounts of events, it appears that the Director had never issued the 2010 Notice allegedly dated 14 January 2010, which in fact is the date of the Applicant’s written signification applying for non-refoulement protection. It is unlikely that the Director could have issued the 2010 Notice on the same day as the written signification was filed. At the hearing, the Applicant agreed with the above finding. This application is dismissed for want of subject matter.
Leave in respect of the 2014 Notice
20. The 2014 Notice was issued on 2 December 2014. The Applicant appealed to the Board and then applied to withdraw his appeal on 28 October 2015 because he wanted to return to Pakistan and it was safe for him to return. The Board allowed his application to withdraw at his request and issued the Decision on 29 October 2015. He was repatriated on 13 May 2016.
21. The Applicant did not apply for leave to apply for judicial review of the 2014 Notice until 27 April 2022, almost seven years and four months after the notice was issued. By then, he was more than seven years out of time for seeking leave to apply for judicial review under Order 53, rule 4(1) of the Rules of the High Court . The delay is very substantial. For all that this Court knew from his request, he had no explanation for the delay. By reason of his very substantial delay and total lack of explanation alone, extension of time will not be granted for him to file this application, however strong his complaint might otherwise be: see Po Fun Chan v Winnie Cheung[6]
22. The Applicant has advanced no particulars of the unfairness in his grounds for judicial review. On the fact, he appealed against the 2014 Notice, then withdrew his appeal and voluntarily returned to Pakistan. Such conduct is inconsistent with any complaint of unfairness. The Applicant agreed at the hearing that he has no complaint against the 2014 Notice.
23. Furthermore, there are statutory procedures to challenge such a notice by way of appeal to the Board and the Applicant had invoked those procedures, though he subsequently withdrew his appeal. The 2014 Notice issued by the Director is not amenable to judicial review.
24. For all these reasons, leave to apply for judicial review of the 2014 Notice is refused. This is a clear case of abuse of legal process.
Leave in respect of the Board’s Decision
25. As mentioned in the above section, the Applicant appealed against the 2014 Notice and then applied to withdraw his appeal. On 29 October 2015, the Board issued the Decision allowing his application to withdraw. For the same reason as stated in paragraph 22, his subsequent withdrawal of the appeal and voluntary repatriation to Pakistan is inconsistent with any complaint of unfairness. It is also difficult to see how the Board could have acted unfairly in allowing his application at his request. When this was put to the Applicant at the hearing, he agreed.
26. Furthermore, the proper way to challenge the Decision is to apply to the Court of First Instance to have it set aside on the ground of nullity in that the Applicant’s application to withdraw was not a deliberate and informed decision: see Ali Usman[7] and HT (Hussain Tasawar) v Betty Kwan[8] . But there is not the least suggestion by the Applicant that his decision to withdraw was not a deliberate and informed one.
27. In addition, the application is six years and three months out of time. The delay is very substantial and un-explained. On this reason alone, leave to apply may be refused under the principle in Po Fun Chan v Winnie Cheung.
28. For all these reasons, leave to apply for judicial review of the 2015 Notice is refused. This is a clear case of abuse of legal process.
Leave in respect of the 2022 Notice
29. It is accepted that the decision of an immigration officer made under section 37ZO(5) refusing a request to make a subsequent application for non-refoulement protection is not appealable to the Board but is amenable to judicial review. An aggrieved claimant may seek judicial review of such a decision on the grounds of error of law, procedural unfairness and irrationality. The Applicant’s grounds for judicial review are unfairness, but he gave no particulars. Thus, this Court would scrutinize the 2022 Notice for errors of law, procedural unfairness and irrationality in the decision.
30. In his affirmation, the Applicant agrees that the immigration officer has stated all the details of his claim in the decisions, ie the 2014 Notice and 2022 Notice. As already explained, the finding of facts in the 2014 Notice is now final and binding on the Applicant. The immigration officer assessed the Applicant’s intended subsequent claim on the basis of the case as he asserted. Thus, there could be no complaint about the immigration officers’ finding of primary facts. The Applicant’s complaint is about the immigration officer’s finding of secondary facts and assessment of his entitlement to make a subsequent claim under section 37ZO of the Immigration Ordinance .
31. The immigration officer considered the Applicant’s case illogical, ie inherently improbable. In view of the long lapse of time of sixteen years, the intention to kill the Applicant would have dissipated. Indeed, according to the Applicant, Sharbir guaranteed that he and his son would not kill or harm the Applicant. Sharbir honoured his part of the guarantee until his death. There was no evidence that the Applicant maintained contact with Shumaila as would provoke Sharbir’s sons to attack him. The Applicant also made a very serious allegation of the police colluding with Sharbir’s sons to detain him in the police station for three days and to torture him. But he gave no particulars of the torture. Understandably, a claimant may have difficulties in collecting the evidence in support of his claim. Usually, the immigration officer would assess an applicant’s claim on the basis of the case as he asserted. This does not mean in an appropriate case he may not hold any doubts about the veracity of the claimant’s case and his credibility. On the objective facts, the immigration officer considered the Applicant’s case inherently improbable. Not only is the Applicant’s case unsupported by credible evidence, it is lacking in particulars. In the circumstances, it was reasonable for the immigration officer to request for further detail or evidence of the alleged incidents to support his claim. But the Applicant did not provide any.
32. At the hearing, the Applicant explained that he was unable to produce the evidence because he was in custody and asked for a couple of months to provide the evidence. He had five years in between his return to Pakistan and his entry to Hong Kong. In the immediate three years before coming to Hong Kong, he had been travelling between Pakistan and China claiming he was in fear of his safety. He made up his mind to fled to Hong Kong to seek protection. That was his second trip to Hong Kong and is his second claim for protection. There is no reason why he did not prepare for the evidence in advance. Furthermore, his detention is no explanation for his failure to even provide the particulars of his claim. He had a whole month while in custody to prepare those particulars, but he did not do so. He has no reasonable explanation for his failure.
33. He also prayed in aid his lack of legal assistance in making his request. In Re Zafar Muazam [9] , Re Zunariyah[10] , Re Zahid Abbas[11] , Re Tariq Farhan[12] , and Re Lopchan Subash[13] , the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[14] nor the judgment of FB v. Director of Immigration [15] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The Applicant was legally represented in prosecuting his previous claim up to the conclusion of the screening interview. In relation to his request, he had been advised by the immigration officer of the availability of the Duty Lawyer Service, but he chose not to avail himself of that service. His lack of legal assistance cannot be an explanation for his failure to provide particulars or evidence in support of his request. Nor can it constitute any attack on the 2022 Notice on the basis of procedural unfairness.
34. Section 37ZO mandates the immigration officer to take into account the circumstances and finding of facts under the previous claim. The officer took into account the finding that state protection and internal relocation are available and could avoid or reduce the risk. Obviously, he must also have taken into consideration the finding that the injuries suffered by the Applicant were not serious and the risk of harm was low. Then, having considered all the information and evidence available, including the findings in relation to his previous claim, he came to the conclusion that there has been no significant change of circumstances since the previous claim was finally determined or withdrawn and that the change when taken together with other materials submitted in support of the previous claim would not give the Applicant’s intended subsequent claim a realistic prospect of success.
35. Having rigorously examined the 2022 Notice, the request and the evidence with anxious scrutiny, the Court is satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO; correctly identified the issues; and properly analysed the evidence. The immigration officer had observed a very high standard of fairness. He had advised the Applicant on the law and procedure and the availability of the Duty Lawyer Service in prosecuting his request. He found the Applicant’s case lacking in particulars, unsupported by evidence and inherently improbable. He found the Applicant had failed to prove there was significant change in circumstance as would entitle the Applicant to make a subsequent claim. Particularly, he noted the finding in the previous claim that state protection and internal relocation are available and could avoid or minimize the risk. It was on that basis that the immigration officer found the change in circumstance when taken together with the material previously submitted in support of the previous claim would not give the intended subsequent claim a realistic prospect of success.
36. These are finding of facts which are exclusively 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 error of law in the decision. The decision in the 2022 Notice does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The decision in the 2022 Notice is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
37. For the above reasons, the Applicant’s application for leave to apply for judicial review in respect of all the decisions is refused.
Dated the 2nd day of February 2023
(Chung Lai Fan, Christine)
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
Notes for the Applicant :
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
Sent to the Applicant o Dar Muhammad Asif
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitorsTorture Claims Appeal Board/Non-refoulement Claims Petition Office Director of Immigration Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance , Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance , Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol
[4] Under the statutory non-refoulement protection regime, a claimant may only make an application for protection once. If his claim is rejected, he may not make a subsequent claim, unless he has obtained leave from the Director. Section 37ZO(2) of the Immigration Ordinance provides that a claimant may not make a subsequent claim unless he provides sufficient evidence in writing to satisfy an immigration officer that: (a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and (b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.
[5] [2018] HKCA 524 at para 14(1)
[6] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ
[7] [2018] HKCA 955
[8] [2017] 2 HKLRD 567
[9] cacv 2/2018, (unreported) 23 March 2018
[10] [2018] HKCA 14
[11] [2018] HKCA 15
[12] [2018] HKCA 17
[13] [2018] HKCA 37
[14] (2004) 7 HKCFAR 187
[15] HCAL 51 of 2007