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

HCAL 1940/2019

[2024] HKCFI 3239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1940 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 oral submissions by the Applicant in open court;

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 10 July 2019 for leave to apply for judicial review (the “leave application”). He did not identify the proposed respondent and decision sought to be reviewed.

2.  By way of background, the Applicant is a Pakistani national. He married a Filipino woman in the Philippines in 1996 (the “first marriage”). In May 1998, he solemnized a marriage with another Hong Kong resident. Then, he arrived in Hong Kong in October 1998. Subsequently, he became a permanent resident of Hong Kong in 2003.

3.  In July 2005, in the capacity of the sponsoring husband, he sponsored a Filipino woman’s application for change of her visitor status to dependent status. It was then that the Immigration Department discovered that his marriage to the Hong Kong resident took place during the subsistence of his first marriage. Hence, the Director revoked his status of a permanent resident and invalidated his Hong Kong permanent identity card in April 2011. His appeal against the Director’s decision was dismissed by the Registration of Persons Tribunal in November 2012. A year later, he filed a non-refoulement claim on 24 January 2014. His claim was first assessed on all three applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]. His claim was refused by the Director’s Notice of Decision dated 13 July 2016 (the “Notice”). Later, his claim was further assessed under BOR 2 Risk[4] ground. It was rejected by the Director’s Notice of Further Decision dated 24 March 2017 (the “Further Notice”). He appealed against the Notice and Further Notice. His appeal was dismissed by the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”). Then, he applied for leave to apply for judicial review of that Decision.

4.  At the hearing, the Applicant confirmed that his leave application was made in respect of the Decision of Board refusing his appeal against the Director’s decisions in his Notice and Further Notice. Leave is therefore granted to amend his leave application to the above effect, making the Board the proposed respondent, the Director the proposed interested party and the Board’s Decision the subject matter of the proposed judicial review.

5.  The leave application was filed 25 months and 17 days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged 22 months and 17 days out of time. Extension of time to apply is required.

6.  In AW and Director of Immigration and William Lam, the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the Applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court would be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[5] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.

7.  The Applicant did not give any explanation for the delay in his Form 86 or supporting affirmation. At the hearing, the Court explored the explanation with him. The only explanation he gave was that he did not know the procedure. That is hardly a possible explanation or excuse for a person in his circumstances. He first came to Hong Kong in 1995 and married in 1996. He has been living in Hong Kong for about 26 years since 1998 when he came with the intention to take up permanent residence. Three months is more than enough time for him to find out the available legal remedy and procedures. The delay in this case is so substantial that leave may be refused on this ground alone. Accordingly, extension of time to file the leave application is refused and his application for the leave to apply for judicial review is refused. For completeness, the merits of his leave application are briefly discussed below.

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 (the “NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims, if returned to Pakistan, he will be harmed or killed by his distant relatives (“K” and “B”) who illegally occupied his father’s farmland.

9.  The Applicant, now aged 53, was born in Village Parhal, Dhudial District, Chakwal, Pakistan. He is married with five children. His eldest daughter is living in the Philippines. His wife, the other four children, and one brother are living in Hong Kong. His mother and his other four siblings are living in Pakistan. He received 10 years’ formal education and had 17 years’ experience working as a driver.

10.  In 1999, the Applicant’s father told him about his father’s dispute with K and B over the farmland. After his father died in 2012, K and B occupied the farmland. In 2013, his two brothers went to negotiate with K and B about repossession of the farmland on different occasions but were beaten up by K, B and their associates. His family reported the case to the police. The problem was resolved. However, after the incident, K and B introduced his two brothers to drugs and caused them to become addicted and hence exercised control over them. The Applicant worried that if he returned to Pakistan, he and his brothers would be forced by K and B to transfer the title of farmland to them.

11.  He does not believe that the Pakistani authorities and police could protect him, as they are corrupt, and K and B have connection with the ruling party.

The finding of the Board

12.  The Applicant testified before the Board. The Board found there was no evidence of past harm to the Applicant or substantial future risk of harm attaining the level of severe pain on his return to Pakistan; that there are numerous places in Pakistan where he could safely relocate to and that adequate state protection is available. It found his fear of K and B was a mere speculation based on a vague assertion that they were connected with the ruling party. Primarily for these reasons, the Board found the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM.

Legal principles applicable to judicial review

13.  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[6].

Grounds for judicial review

14.  The Applicant did not advance any grounds for review in Form 86. In his supporting affirmation, he reiterated that his life would be in danger if he returned to his home country, and he liked to stay in Hong Kong until the problems in Pakistan were resolved. At the hearing, after the legal principles in the preceding paragraph was explained to him, he confirmed he had no complaint about error of law, procedural unfairness or irrationality in the Decision and left it to the Court to look for these vitiating elements in the Decision for him. He repeated his danger in Pakistan and his desire to stay in Hong Kong until his problems in Pakistan were resolved. In the absence of specific grounds of application or 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.

Overall scrutiny

15.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is 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 assessed the Applicant’s claim on the basis of his case as he asserted but found on such evidence that his fears of K and B are mere speculations; that adequate state protection is available and internal relocation is feasible. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. This is a mixed finding of fact and of the law. Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law, procedural unfairness or that the Decision is irrational. Insofar as the Board’s finding is a finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

16.  The leave application was made more than 25 and half months out of time. The Applicant could offer no reasonable explanation for the substantial delay. Furthermore, his leave application has no prospect of success. For the above reasons, extension of time extension of time to file the leave application and his application for the leave to apply for judicial review are 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