AKHTAR WAHEED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1224/2019

[2023] HKCFI 2687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1224 of 2019

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;

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision allegedly dated 5 March 2013, but was in fact dated 5 March 2015 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s First Decision”). His application filed on 7 May 2019 is late. The delay is serious. 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, I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Pakistan. He was arrested by the Hong Kong police on 11 January 2008 for illegal remaining. On 20 January 2008, he raised a torture claim. Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim and assessed on all applicable grounds. His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle Samurd due to a land dispute.

5.  After the applicant’s grandfather passed away, he gave the family land to Samurd. Unsatisfied with the distribution, the applicant’s father demanded a portion of the land. In around 2002, the applicant and his father went to the land and involved in a fight with Samurd. All of them were injured and Samurd was unconscious. Thereafter, the applicant’s father reported the incident to the police but the police refused to take his complaint. Since then, the applicant’s family had been avoiding Samurd. In October 2007, Samurd visited the applicant’s house in Jalalia and threatened to kill him if they asked for the land again. The emotional distress and fear caused the applicant’s family to move to Hatian.

6.  On 5 January 2008, when the applicant returned home, he was told that the son of Samurd was seriously injured and someone informed Samurd that the culprit was the applicant. Feared that Samurd would hurt him because of the land dispute and the son’s injuries, the applicant fled to Hong Kong. He also learnt that Samurd actively participated in the political parties in Jalalia. While his family in Hatian never encountered Samurd, he still feared for his life. Thus, he decided to seek protection in Hong Kong. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 30 December 2014 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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

(i)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(ii)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(iii)  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

(iv)  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 way of the Director’s First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[14]; (ii) there was no indication that his uncle possessed the intention to seriously harm or kill him [15]; (iii) state protection would be available to him [16]; and (iv) internal relocation was a viable option [17]-[21].

9.  For reasons set out in the Notice of Further Decision dated 1 February 2017, the Director also refused that the applicant’s right to life would be violated and dismissed his claim on the ground of BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

10.  The applicant first appealed the Director’s First Decision to the Board. He filed his notice of appeal/petition on 19 January 2015, which was around 4 days out of time. In his notice of appeal/petition, the applicant explained the delay that he lacked language assistance and hence the delay [4]. The Board refused to accept his explanation [5]. Nevertheless, it proceeded to consider the merits of the applicant’s appeal [6]. In gist, the Board found that the applicant was not seriously injured, that there was no government official involved and that it was just a private land dispute. In these premises, the Board was of the view that the chance of success in this appeal was extremely slim [8]. Meanwhile, since October 2007, the applicant had not met his uncle nor did his family in Hatian mention any fresh incidents of harassments or assaults from his uncle [9]-[10]. Therefore, on 5 March 2015, the Board refused to exercise its discretion to allow the applicant’s late filing of notice of appeal/petition against the Director’s First Decision (the “Board’s First Decision”).

11.  Later, the applicant also filed a notice of appeal/petition against the Director’s Second Decision. By way of its decision dated 1 December 2017, the Board considered that, in absence of any additional information, the applicant failed to establish a personal and real risk of violation of his right to life and thus refused his claim on BOR 2 risk and dismissed his appeal (the “Board’s Second Decision”).

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 7 May 2019 for leave to apply for judicial review of the Board’s First Decision.

13.  In his affirmation in support of this application, he set out the grounds as summarized below.

(i)  No reasonable basis for rejecting his application.

(ii)  Failure in considering the extended form of state acquiescence.

(iii)  Failure in consider the COI relevant to his case.

(iv)  Irregularity: adjudicator is a different person; failure in placing weight on relevant information and wrongly placed weight on irrelevant information; failure in considering consistent pattern of human right violation; wrong considered that state protection would be available in Pakistan; no psychological or psychiatric reports; incorrect standards of proof.

DISCUSSION

14.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 5 June 2015. The delay is almost 4 years. He has given no explanation for his delay and his application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

15.  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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

17.  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.”

18.  The Board, for the reasons it had given in the Board’s First Decision, did not accept the applicant’s explanations for his delay in filing his notice of appeal with the Board. The Board had also considered the merits of the applicant’s case for his appeal and, for the reasons given, found that he had failed to establish real risk of harm if he returned to Pakistan. For those reasons, the Board had refused the applicant’s application for extension of time for filing his notice of appeal.

19.  The applicant had also sought to appeal the Director’s Second Decision refusing his BOR 2 risk to the Board. The Board, by its Decision dated 1 December 2017 and for the reason that he had failed to establish his claim on BOR 2 risk, rejected his appeal against the Director’s said Decision. He did not apply for leave for judicial review of the Board’s Second Decision. Even if he does so, his application is deemed to fail as he has failed in his claim in respect of BOR 3 risk.

20.  The grounds in paragraph 13 are general or bare assertions or the applicant’s personal opinions without any evidence in support. I shall only deal with the relevant grounds. The fact that the adjudicator was a different person is not a ground of objection because the Board is a different body for re-considering the Director’s First Decision under the Ordinance. The Board did not make evaluation of the applicant’s psychology or psychiatric condition because the applicant had not made any complaint to the Board.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.  Therefore, I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s First 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