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HCAL 2742/2018
[2021] HKCFI 1885
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2742 of 2018
BETWEEN
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Akram Faisal |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application for leave to apply for judicial review of:
(1) the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 June 2017 (the “Notice”);
(2) the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) contained in its letter dated 23 October 2017 (the “Decision”);
(3) the Applicant’s own un-dated letter sent to and received by the Board on 29 October 2018 (the “Applicant’s Letter”); and
(4) the decision of the Board contained in the secretariat’s letter dated 30 October 2018 (the “Secretariat’s Letter”).
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 and the Applicant has invoked those procedures. The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1].
3. Item (3) is the Applicant’s Letter sent to the Board seeking to re-open his non-refoulement application. The letter contains his own decision seeking to re-open his non-refoulement application. The Board made no decision. The Applicant’s Letter was the act of the Applicant and not a decision of an administrative body. It is not subject to judicial review.
4. Item (4) is the Secretariat’s Letter reply to the Applicant’s Letter. It contained no decision of the Board. It only referred the Applicant to the Decision of the Board. There is no decision for the court to review.
5. Thus, in substance the only subject matter for judicial review are Item (2), ie the Board’s Decision to allow the Applicant’s withdrawal of his appeal against the decision of the Director in his Notice and, arguably, the Board’s decision contained in the Secretariat’s Letter dated 30 October 2018 not to re-open the appeal, ie item (4). It also appeared from the Applicant’s supporting affirmation that the focus of his leave application is on the Board’s decision as related to him in the Secretariat’s Letter in Item (4).
The background
6. The Applicant is a Pakistani national. He came to Hong Kong to work as a foreign domestic helper in March 2013. Not long after he commenced his employment, he was prosecuted for indecent assault of a woman. He pleaded not guilty but was convicted after trial and sentenced to 12 months’ imprisonment. The conviction was known to the Applicant’s villagers and his maternal uncle who were in Hong Kong. After his discharge from prison, he sought non-refoulement protection claiming (i) his fear of being unwelcomed by his family and fellow villagers; (ii) his being unable to find a marriage partner; and (iii) his being harmed or even killed by religious fanatics or Islamic extremists, if returned to Pakistan.
7. In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5]. By the Notice dated 28 June 2017, the Director rejected his claims. The Director considered the risk of harm from religious fanatics or Islamic extremist low, especially if the Applicant stayed outside his home village. The Director considered internal relocation would further lower or negate the perceived risk. The Director also considered the Applicant did not meet the criteria required under the four applicable grounds. The Applicant appealed to the Board against the Director’s decision in the Notice.
8. The Applicant’s appeal was scheduled to be heard before the Board on 23 October 2017. On the day of the hearing, he wrote to the Board to withdraw the appeal. Having regard to all available information before the Board, the Board was satisfied that the application for withdrawal was freely sought; that the Applicant understood the consequences of the withdrawal; and that there was good reason for the proposed withdrawal, namely that the Applicant considered it safe to return to his home country. Accordingly, the Board allowed the application and gave directions that the appeal be withdrawn and the Director’s decision in the Notice dated 28 June 2017 be confirmed. The Board’s Decision was related to the Applicant by the letter dated 23 October 2017 issued by the secretariat, which is Item (2) mentioned in paragraph 1 above.
9. Then, one year later, by the Applicant’s Letter, the Applicant sought to re-open his appeal, ie Item (3). The letter was un-dated. It was received by the Board on 29 October 2018. By the Secretariat’s Letter dated 30 October 2018, ie Item (4), the secretariat replied that the Board had by its Decision related to him dated 23 October 2017 disposed of his appeal and no further action will be taken by the Board in respect of his appeal/petition.
10. The Applicant now sought leave to apply for judicial review of the decisions in the four items. For reasons already explained, the only decision open to judicial review is the Board’s Decision allowing the Applicant’s application to withdraw his appeal as related to him by the secretariat’s letter dated 23 October 2017, ie Item (2) and arguably the Board’s decision related to him in the Secretariat’s Letter dated 30 October 2018, ie Item (4).
The grounds of the application for leave to apply for judicial review
11. The Applicant filed a six-page affirmation in support of his leave application. He set out the background of his case which has been summarized in greater details above. He annexed the four Notice, Decisions, the Applicant’s Letter and the Secretariat’s Letter. In paragraph 11 of his affirmation, he set out his ground of application as follows:
“I believe [the Board] erred in its decision making and should have investigated the matter when I raised the issue of coercion but instead they just dismissed of my case.”
The essence of his case for re-opening his appeal is coercion. It appeared that this ground was actually directed only at the Board’s decision related to him via the Secretariat’s Letter, ie Item (4), as it alleged that the Board dismissed his case, ie refused to re-open his case.
The Applicant’s case of coercion
12. The Applicant’s case of coercion as set out in his supporting affirmation is as follows. Before the date of hearing of the appeal before the Board, he received threatening calls from various men in Hong Kong saying that if he did not withdraw his appeal and return to Pakistan, they will harm his family members. On the date of hearing, several men were waiting for him outside the Board and pressurized him to withdraw his case. He did not report to the police because he was scared if he made a complaint to the police he would be detained or arrested due to language barrier and misunderstanding. Out of fear, he withdrew his appeal alleging that his problems in Pakistan was solved.
13. At this hearing, the Applicant added that he was told to withdraw his appeal by saying that his mother was sick and he wanted to return to Pakistan. He said one of the men met him in Tsuen Wan and accompanied him to the counter of the secretariat of the Board to make sure that he withdrew the appeal.
14. The Court did not find the Applicant’s case inherently probable. First, there was a total absence of motive in the men allegedly uttering the threat. The Applicant said he did not know those men and he could offer no motive why they wanted him to withdraw the appeal and to return to Pakistan; and why they wanted to kill him or to cause him to return to Pakistan to be killed. There was nothing to suggest those men are in anyway connected to the victim of the indecent assault case or that they are fanatics or Muslim extremists. There is no conceivable reason why those men had an interest in the Applicant’s return to Pakistan. It appears that those men and what they are alleged to have done are just fictions or concoctions to give the Applicant a reason for re-opening his appeal which he had withdrawn.
15. Second, the Applicant’s conduct did not appear to be that of a man who has been subjected to threat and who is genuinely worried about his life. It is his case that his life would be at risk if he returns to Pakistan. He knew he would have to be refouled, if he does not pursue his appeal. In the circumstances, it is inexplicable why after those men had left him on 23 October 2017 he did not immediately or as soon as was practicable thereafter withdraw his withdrawal. Instead, it took him more than a year to make up his mind to apply by the Applicant’s Letter to the Board to re-open his appeal. The longer he took to apply to re-open his appeal, the greater is the likelihood that his application is an afterthought which is not genuine.
16. For the above reasons, the Court rejected his evidence of coercion. Thus, there is no factual case to support his ground for judicial review. This would be sufficient to dispose of his application. Despite that, the Court went on to consider his ground of application, both in respect of the Board’s Decision and the Board’s decision allegedly related to him via the Secretariat’s Letter dated 30 October 2018, ie Item (2) and Item (4) respectively.
Disposition
17. The Board’s Decision was made as a result of the Applicant’s application and his assertion that his problems in Pakistan had been solved. The Board considered all relevant information and exercised due care in making the Decision. At the hearing, the Applicant confirmed that the Board did not know about the threat and that he was acting under coercion. He said that the secretariat or the Board did not know he was under threat. He agreed that the Board granted him leave to withdraw his appeal at his request. He had no real complaint against the Decision. In the Decision conveyed by the Secretariat’s Letter dated 23 October 2017, the secretariat informed the Applicant the Board’s Decision as follows:
“… Under the circumstances, the Board has given direction that your appeal/petition is withdrawn. The Board has also directed that the immigration officer’s decision of 28 June 2017 is confirmed.
Please note that your appeal/petition has now been disposed of and finally determined by the Board. No further action will be taken by the Board in respect of your appeal/petition.”
Thus, the appeal has been disposed of and finally determined by the Board. The Director’s decision in the Notice dated 28 June 2017 was confirmed. There will be no further action to be taken by the Board. That was the Decision. The Applicant has no complaint about that Decision.
18. The Applicant’s real complaint was against the Board’s alleged decision as related to him via the Secretariat’s Letter dated 30 October 2018 refusing to re-open his appeal. In that letter, the secretariat enclosed a copy of its letter dated 23 October 2017 and drew the Applicant’s attention to the content of that letter in which the secretariat informed him of the Decision of the Board. The letter went on to explain the effect of its letter of 23 October 2017 as follows:
“By our letter of 23 October 2017, you were advised the Board had granted you the request to withdraw your appeal/petition. The Board had also confirmed the immigration officer’s decision dated 28 June 2017 and disposed of your appeal/petition. No further action will be taken by the Board in respect of your appeal/petition.”
19. The secretariat only referred the Applicant to its letter of 23 October 2017 and explained to him the Decision given by the Board as related to him in that letter. The Applicant’s appeal had been disposed of a year ago. The Board made no decision. There was no decision which could form the subject matter of judicial review. Furthermore, the Applicant has failed to prove coercion to support his ground for judicial review.
Conclusion
20. For the above reasons, leave to apply for judicial review was refused.
Dated the 29th day of June 2021
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(Sammi Wu) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 29 June 2021
Akram Faisal
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 29 June 2021
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7720/17/7/101/P1527
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 938/17 (formerly RBCZ/3002216/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] [2018] HKCA 549
[2] 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
[3] 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”)
[4] 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
[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
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