ABBAS ASAD v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1729/2018

[2019] HKCFI 2634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1729 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 10 May 2017 be refused; and

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

It is further directed that:

(1)   If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)   When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)   The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)   If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)   Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is a Pakistani national. He arrived in Hong Kong on 3 November 2013, the same day he was arrested by police. On 4 November 2013, he was referred to the Immigration Department for further investigation. On 7 November 2013, he lodged a non‑refoulement claim.

3.  His reason for his application is that he would be harmed or killed by his step‑paternal uncles called Raja Maqsood and Raja Khursheed because of a dispute over a piece of family farmland.

4.  In his statements given to the Director and the Board, he claimed that his step-paternal uncles Raja Maqsood (“RM”) and Raja Khursheed (“RK”) asked him to sell his land to them at a price lower than the market price in 2005. He refused. In the same year, RM and RK abducted his brother and had one of his fingers cut off. He reported to police. The police arrested RM. RM paid for medical expenses and was released. Two or three months afterwards, there was a scuffle between his brother and RM’s workers on the land. His brother was murdered. Five years later, in 2011, he met RM and was asked to sell his land to him. RM was with some other people. He refused. There was a fight between himself and RM and his people. A farmer intervened and they left, with RM uttering death threats to him. Two or three months later, he ran into RM with four unknown men on the street. They attacked him with bare hands. He threw a stone at them and hit one causing him bleeding. RM filed an attempted murder claim against him. He fled and his friend suggested him go to Hong Kong. He took his advice and came to Hong Kong through China.

The Director’s Decisions

5.  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 under RC”).

6.  By Notice of Decision dated 27 July 2016 (“the Director’s Decision”), the Director rejected his claim under 5.a, 5.c and 5.d. for the reason that his claim was not substantiated. By another Notice of Further Decision dated 15 March 2017 (“the Director’s Further Decision”), the Director rejected his claim for BOR 2 risk for the reason that his claim was not substantiated. The Director’s Decision and Further Decision are collectively called (“the Director’s Decisions”).

The Board’s Decision

7.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 19 April 2017.

8.  By Decision dated 10 May 2017 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decisions.

9.  The Board considered the applicant’s case. It found that the applicant had not suffered any severe and physical or mental suffering within the context of section 37U(1) of the Ordinance [12], nor was there any involvement of the national government [13]; he had not suffered severe injury or serious harm which would place him within the criteria of BOR 3 risk; there was no substantial risk to the applicant’s life as protected under BOR 2 risk and there was no substantial ground to believe that he would be subject to the Persecution risk under RC [32]. The Board also found that state protection would be available to the applicant [33].

10.  In his Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decisions and the Board’s Decision respectively.

11.  In his affirmation in support of his application filed on 23 August 2018, the applicant relied upon the following grounds:

1.  the Director and the Board had reached wrong decisions as they were unreasonable and unfair;

2.  the Director had not given sufficient weight to his argument;

3.  the Director failed to attain a high standard of fairness.

DISCUSSION

The Director’s Decisions

12.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

13.  The applicant’s application for leave to apply for judicial review of the Director’s Decisions therefore fails in limine. I dismiss his application.

The Board’s Decision – application out of time

14.  Under Order 53, rule 4(1) RHC, the applicant has to take out his application for leave to make an application for judicial review within 3 months from the date when the grounds for the application first arose.

15.  The applicant is out of time for making his application for leave to apply for judicial review of the Board’s Decision (dated 10 May 2017). In accordance with the decision of the Court of Appeal in Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, CACV 110/2017 and CACV 162/2017, 23 July 2018, his application cannot proceed without this Court granting him an extension of time. See §28.

16.  The applicant has not made an application for extension of time. Nor had he given any good reason for this Court’s consideration.

17.  The consideration of whether time should be extended for the applicant to take out this application should be the same as held by the Court of Appeal in Khan Mohammad Shadab [2018] HKCA 897, CAMP 75/2018, 4 December 2018, namely, (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.

18.  This Court considers that there is no reasonable chance of success for the intended judicial review for the reasons below.

19.  The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. Their respective Decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board.

20.  It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

21.  Grounds (1), (2) and (3) are his opinion without any evidence in support of them.

22.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

23.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him extension of time for leave to apply for the judicial review. Accordingly, I dismiss his application.

24.  It is further directed that:

1.  If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

2.  When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

3.  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondents and whether the application for leave to appeal shall be determined on paper;

4.  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions.

5.  Liberty to apply.

25.  It is noted that by letter dated 4 September 2019, the applicant applied to this court to withdraw his application because he wanted to return to Pakistan.

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