ASIM HAFIZ TAHIR MAHMOOD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION

HCAL 2625/2018

[2022] HKCFI 110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2625 of 2018

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 24 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Second Decision”). 

2.  He is now being detained by the Immigration Department.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with 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 22 November 2007 and was arrested by the Hong Kong police on 26 November 2007.  On 10 December 2007, he lodged a torture claim.  On 23 October 2013, he again lodged a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. His torture claim under the convention was not processed.  Thereafter, his claim was taken as a non-refoulement claim upon the commencement of unified screening mechanism.  He is now being detained at Castle Peak Immigration Centre.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by Mohammad Iqbal (“MI”) because of a land dispute. 

5.  According to the applicant, in around 2006, he purchased a land with partial deposit paid.  However, MI also wanted that piece of land and forced the vendor to sell the land to him.  The applicant did not get his deposit back and was threatened by MI not to stay on the land.  The applicant confronted MI and had verbal arguments.  Later in May 2007, MI and his brothers shot the applicant’s right leg with a gun.  The applicant also received death threats from MI.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his claim could be found at paragraph 7 of the Notice of Decision dated 23 December 2014 by the Director (“the Director’s First Decision”) and paragraphs 2 to 3 of the decision dated 15 February 2016 by the Board (“the Board’s First Decision”) described below.         

The Director’s Decisions

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 the Director’s First Decision, the Director refused his claim for the reason that his claim was not substantiated.  The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed by MI upon refoulement [13]-[15]; that reasonable state protection was available to him [16]-[18] and that internal relocation was an option open to him [19]-[20].  In the Notice of Further Decision dated 7 February 2017, the Director also rejected his claim on BOR2 risk (“the Director’s Second Decision”).

The Board’s Decisions

8.  The applicant first appealed the Director’s First Decision to the Board.  On the hearing dated 13 May 2015, the applicant was represented by the Duty Lawyer.  Having considered the applicant’s evidence, the Board found that (1) the dispute with MI was merely a private dispute with no state involvement [7] –[12]; (2) the applicant failed to provide any medical evidence to prove the seriousness of the gun-shot injuries [13] and MI only warned him not to return to his home village [14]; (3) the Director was correct in concluding that internal relocation was available to the applicant [18]-[19]; and (4) independently assessed, the applicant was not a credible witness and also not a genuine protection seeker [37]-[43].  For these reasons, the Board, by its Decision dated 15 February 2016 (the “Board’s First Decision”), rejected his claim on Persecution risk, Torture risk and BOR3 risk and dismissed his appeal. 

9.  On 29 August 2018, the applicant appealed against the Director’s Second Decision.  As his notice of appeal/petition was filed out of time by 1.5 years, the Board considered whether to allow such late filing.  The Board rejected the applicant’s explanation for the lengthy delay [9] and considered that, given the applicant failed to adduce new evidence in support of his claim and in light of the Board’s First Decision, there was no merit in the applicant’s appeal against the Director’s assessment of his claim under BOR2 risk [10]; [12].  Thus, the Board, by the Board’s Second Decision, refused to allow the applicant’s late filing of notice of appeal/petition against the Director’s Second Decision. 

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 21 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he said that he was not satisfied with the Board’s Decision, without setting out any specific ground in support of his application.

DISCUSSION

12.  The main issue for determination is whether the Board was right not to extend time for the applicant to file his notice of appeal against the Director’s Second Decision.  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).

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

14.  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.”

15.  The Board had considered the merits of his case by reference to the Board’s First Decision, which contains all the facts in support of his non-refoulement claim.  His appeal against the Director’s Second Decision has no merit.  He has no valid ground to challenge the Board’s Second Decision.

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

17.  There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for his intended 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