ALI YASIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 165/2022

[2022] HKCFI 1314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 165 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

1.      Extension of time to file the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 12 March 2020 refused; and

2.      Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration[1] (the “Director”) in his Notice of Decision dated 15 November 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 12 March 2020 (the “Decision”).

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board[2] and the Applicant has invoked those procedures.  The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[3]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also. 

3.  The Applicant is a national of Pakistan, now aged 28.   He entered Hong Kong on 17 January 2016 illegally and was arrested by the police on the same day.  On 19 January 2016, he raised a non-refoulement claim.

4.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[4]; BOR 3 Risk[5]; Persecution Risk[6]; and BOR 2 Risk[7].  By a Notice of Decision dated 15 November 2018, the Director rejected his claims under all four applicable grounds.  He appealed to the Board against the decision of the Director in the Notice.  On 12 March 2020, the Board dismissed his appeal (the “Decision”).

5.  On 15 February 2022, he applied for leave to apply for judicial review of the Decision of the Board.  The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

6.  The Decision was made on 12 March 2020.  It was not until 24 February 2022, more than 23 months later, that the Applicant sought judicial review of that Decision.  Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  An application made after three months is deemed to have been made with undue delay.  By 15 February 2022, his application was more than 20 months out of time. To obtain extension of time for making an application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted; and (iv) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[8].

7.  Merits is usually a very important factor.  It was held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[9] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.  Where the delay is not very substantial, merits is usually the determinant factor.  It would be convenient to examine merits first, which would also dispose of the substantive application, if extension of time is granted.

The Applicant’s case

8.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.    In gist, he claimed that he would be harmed by members of the Pakistan Muslim League-Nawaz political party (“PML(N)”) because he was a supporter of a competing political party, the Pakistan Tehreek-e-Insaf political party (“PTI”).

9.  The Applicant was born in Azad Jammu and Kashmir (“AJK”), Pakistan.  He was single and resides with his family in Pakistan.  He became a supporter of PTI since 2015.   He and his family were the only PTI supporters in his village.  This caught the attention of PML(N) members, particularly Shafait, Anwar and Sheraz (the “Trio”).  They repeatedly asked the Applicant to join PML(N) but every time he refused.  Then they started causing him troubling.

10.  One day in July 2015, while the Applicant was riding home on a motor bike, he was intercepted by a car driven by four to five people, including the Trio.  They demanded the Applicant to leave PTI and join PML(N).  When the Applicant refused, they beat him with wooden rods and iron rods.  They told him that he would be killed if he refused to join next time.  The Applicant suffered injuries on his head and right hand.  He was taken to a hospital by a friend.  He received five to six stitches in the hospital and was discharged after five to six days.  It took him two to three weeks to recover.  He did not report the incident to the police because he thought the police was controlled by PML(N). 

11.  Then the Applicant stayed in his cousin’s home in Punjab, Pakistan for about six months from mid-2015 to December 2015 to avoid danger.  During that period, he heard from his family that the Trio had visited his home several times to look for him. They told his family that they would kill him if they found him.  The Applicant decided to flee Pakistan in because he thought the PML(N) would be able to locate him sooner or later.  He flew from Pakistan to Guangzhou on 11 January 2016 and then entered Hong Kong illegally.  Notwithstanding the fact that the PTI won the general election in Pakistan in 2018, the Applicant claimed that it would not be safe to return to Pakistan because the ruling political party in AJK was still PML(N) as before.

The finding of the Board

12.  The centrepiece of the Applicant’s claim for protection was that he had been attacked by PML(N) supporters because of his support for the PTI.  However, the Board noted that the Applicant could not even recall the basic facts about the PTI (such as its flag, its ideology and the name of its central leader).   The Board also found it inherently improbable that the Applicant was targeted for having been a supporter of PTI for just six months, while his parents who were more actively involved and organized meetings in their home were not targeted.   The Board rejected his claim of being a PTI supporter.

13.  The Applicant did not answer the Board’s question about the details of the attack (such as when his motorcycle was stopped and who said what during the occasion).  The Applicant’s testimony before the Board about his three encounters with the Trio were inconsistent with those in the NCF and/or the screening interview records.  His evidence was equivocal as to whether he had been assaulted on all the three encounters or not at all.  Hence, the Board did not accept his evidence about the attack by the Trio.

14.  The Applicant explained that he did not make a report to the police about the attack because Tariq Farooq (a member of the assembly in AJK) would exert influence on the police. That explanation was inconsistent with the election records.  According to records, Tariq Farooq did not become a member of the Legislative Assembly until after the Applicant had left Pakistan.  The Applicant was also incorrect in asserting that the PML(N) was the ruling party in AJK during the material time in mid-2015.  PML(N) became the ruling party in 2016 after the Applicant had fled.

15.  The Board also did not accept the Applicant’s claim in the NCF that the Trio had been to his parent’s house to look for him after the attack because it was the Applicant’s testimony before the Board that he only had three encounters with them and all of which occurred before the attack.

16.  Having rejected his claim about being attacked, the Board found that the Applicant had never been subjected to any of the proscribed risks under the USM and would not be at risk from any of those risks upon his return to Pakistan.  Besides, neither the Applicant nor his family members have political profile of interest to any political parties.

17.  The Board conducted a comprehensive review of the available Country of Origin Information (“COI”) and noted that while there were corruption problems in the Pakistani government, the government had taken steps to address these problems.  On the basis of the COI, the Board was satisfied that reasonable state protection would be available to the Applicant upon his return to Pakistan.  Further, the Applicant had not actually exhausted all avenues of state protection open to him[10].

18.  The Board also dismissed the Applicant’s claim that he could not safely relocate to other parts of Pakistan because he had to register with the local police station and the Trio could locate him with the help of Tariq Farooq.  This is because the Applicant gave “contradictory” explanations regarding the alleged registration requirement and that he had not in fact registered with the Punjabi station when he was in Punjab.  The Board further noted that there was no independent and reliable evidence to suggest that the registration system would be abused[11].  The Board found that the Applicant may safely relocate to Islamabad, Karachi and Lahore[12] and it would be reasonable to expect him to so relocate.

19.  Applying the law applicable to non-refoulement protection under the USM to the Board’s finding of fact, the Board concluded that the Applicant had failed to prove his entitlement to protection under any of the four applicable grounds under the USM.  Hence, it dismissed his appeal against the Notice.

The legal principles applicable to judicial review

20.  The role 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.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[13].

Grounds for judicial review

21.  The Applicant did not state any grounds for judicial review in his Form 86.  In his supporting affirmation, he averred:

“I am apply this application because I am not satisfy with Decision given by TCAB/Director of [Immigration]. My life still danger in my home country Pakistan if I go back there. So please accept my application I am so thankfully for this kindness help.”

22.  The Applicant’s complaint is that he disagrees with the outcome of the Decision and that his life will be at risk if he returns to Pakistan.  He asks this Court to allow his application for non-refoulement protection.  Basically, he is disputing the Board’s finding of fact that his life will not be at risk if refouled and asking this Court to re-assess his claims afresh and allow his application for non-refoulement protection.  These are outside this Court’s jurisdiction in an application for judicial review.  He has not identified any error of law, procedural irregularity or unfairness and irrationality in the Decision.  He has not identified what is wrong with the Decision other than that he disagrees with it.  In the absence of grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Merits of the substantive application

23.  The essence of the Applicant’s complaint is that he disagrees with the Board’s finding that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk, if returned to Pakistan. 

24.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board found the Applicant not credible and that he has failed to prove the factual basis to support of his claim.  The Board gave detailed reasons for disbelieving the Applicant.  It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks. 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 Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Length of the delay and the explanation for the delay

25.  As explained in paragraph 6 above, the Applicant’s application is more than 20 months out of time.  The delay is very substantial whether in terms of duration or in the context of the statutory period of three months to apply.  He did not give any explanation for the delay.  He has been sleeping on his rights.  The Court could have specifically invited an explanation from him.   But in view of the very substantial delay and the absence of any realistic prospect of success, this is unnecessary.  This is precisely the type of case in which Litton NPJ’s comment in Po Fun Chan v Winnie Cheung is applicable.  For these reasons alone, the Applicant should be barred from pursuing his rights in a judicial review.

Balance of prejudice to the applicant and the proposed respondent if extension of time is granted

26.  As the intended judicial review has no realistic prospect of success, the Applicant will suffer no prejudice, if no extension is granted.  The prejudice to the proposed respondent and to public administration, if a challenge is allowed to proceed, is obvious.  The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement.  To allow the challenge to proceed would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. 

No questions of general public importance

27.  The intended application is essentially an appeal against the finding of fact by the Board dressed up as an application for judicial review.  It does not raise any questions of general public importance which are likely to have to be resolved by the courts in any event.

Conclusion

28.  The application for leave to apply for judicial review is late for a very substantial period.  The Applicant has no reasonable explanation for the delay; the substantive application has no realistic prospect of success; the Applicant will suffer no prejudice if extension is not granted but the proposed respondent will suffer serious prejudice if extension is allowed; and the application does not raise any questions of general public importance.  All these considerations point against granting extension of time.  Accordingly, the Applicant should not be granted an extension of time to enable him to file this application.  His application, being grossly out of time, is refused.

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

[1] Though the Director was not named as a party in the Applicant’s Form 86, he was named as a party in his supporting affirmation filed on 24 February 2022.

[2] Section 37ZR of the Immigration Ordinance, Cap. 115

[3] [2018] HKCA 549

[4] 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

[5] 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”)

[6] 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

[7] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[8] CACV 63/2015 (unreported) 3 November 2015

[9] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[10] Paragraph 223 of the Board’s Decision

[11] Paragraph 265 of the Board’s Decision

[12] Paragraph 268 of the Board’s Decision

[13] [2018] HKCA 524 at para 14(1)