TAHIR WASIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2214/2018

[2022] HKCFI 1149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2214 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;

Extension of time for the application for Judicial Review be refused &

the application 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 1 September 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application filed on 11 October 2018 is late for 10 months and 10 days, I shall deal with this issue below.

2.  The applicant 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 national of Pakistan.  He entered Hong Kong illegally on 4 July 2006 and was arrested by the police on 14 August 2006.  On 16 August 2006, he lodged a torture claim.  He was later convicted of criminal offences and imprisoned.  Upon his release on 23 December 2010, he was released on recognizance.  However, he had absconded since 20 March 2012.  On 16 October 2015, he was arrested again by the police.  On 19 October 2015, he lodged a non-refoulement claim. 

5.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by people of Hizb-ul-Mujahideen (“HM”).  According to the applicant, he joined the HM in June 2004 and was sent to a training camp.  In the training camp, the applicant realized that he was trained to be a terrorist.  In January 2005, disagreed with HM’s philosophy, the applicant escaped.  He went back home and heard that people from HM started looking for him.  To avoid them, the applicant relocated to several places and nothing eventful happened during those periods.  Eventually, the applicant fled to Hong Kong for protection.  Details of the applicant’s claim are set out at paragraph 7 of the Notice of Decision dated 27 July 2016 by the Director (the “Director’s First Decision”) and paragraph 22 of the Board’s Decision as described below.

The Director’s Decisions

6.  The Director considered the applicant’s claim in relation to the following risks:

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

(2)     risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)     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

(4)     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 way of the Director’s First Decision, the Director refused his claim on Torture risk, BOR3 risk and Persecution risk.  The Director noted that, on 22 January 2016, the applicant’s duty lawyer wrote to the Immigration Department and informed them that the applicant’s previous screening records and/or questionnaires should not be relied upon at the screening interview or throughout the process of determining his non-refoulement claim (the “DLS letter”) [6].   

8.  Having considered the evidence, the Director refused to accept that the applicant would face real risk of harm upon refoulement because (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]; (ii) state protection was available to him [15]; and (iii) internal relocation was an option open to him [16]-[20].  In addition, for reasons set out at the Notice of Further Decision dated 23 May 2017 that there was no evidence to show that his right to life under BOR 2 would be violated upon his return to Pakistan, the Director also rejected his claim on BOR2 risk (the “Director’s Second Decision”) for the reason.

9.  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.  

The Board’s Decision

10.  The applicant appealed the Director’s Decisions to the Board.  The Board scheduled an oral hearing on 3 July 2017 for his appeal.   

11.  The Board considered all the evidence and concluded that the applicant’s evidence was not reliable for the following reasons:

(i)     The DLS letter indicated that the applicant was not telling the truth;

(ii)     The applicant gave different versions as to how he sneaked into Hong Kong;

(iii)   He was inconsistent as to whether he needed to sign an agreement to join the camp with HM;

(iv)   His behaviors, in particular his criminal convictions, showed that he was not someone who was genuinely in need of protection; and

(v)     There was no evidence suggesting that HM members were looking for him.

See [27] of the Board’s Decision.

12.  Further, the Board proceeded to consider the individual grounds.  It assessed the country of origin information and found that state protection was available to the applicant [31]-[33].  It noticed that the applicant was never inflicted with severe pain or suffering [34] and there was no evidence of state involvement [35]-[27].  Besides, the Board found that the applicant joined HM voluntarily and he failed to provide evidence showing that any quitter from HM would be subjected to any harm [49]-[51].  On his own evidence, his information that the HM members were looking for him was hearsay and he had encountered no incidents after he escaped from the camp [52]-[56].  Thus, no evidence was present to support his claim that he was persecuted by HM.  In any event, internal relocation would be available to him [57]-[60].

13.  For the aforesaid reasons, the Board rejected his claim and dismissed his appeal. 

Application for leave to apply for judicial review

14.  The applicant filed Form 86 on 11 October 2018 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, he enclosed the hearing bundle and some documents without specifying any grounds.

DISCUSSION

16.  As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

17.  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).

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

19.  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.”

20.  The applicant has not raised any valid ground to challenge the Board’s Decision.

21.  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.

22.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

23.  I therefore refuse to extend time for the applicant to apply 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

Form CALL-1