ABBAS NASIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2957/2019

[2025] HKCFI 1202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2957 OF 2019

_____________

BETWEEN

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 21 January 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expires on 21 April 2019. His application was filed on 9 October 2019, which is late for more than 5 months. This issue will be dealt with below.

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 12 March 2025.

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, aged 45, is a national of Pakistan. On 14 March 2015, the applicant was arrested by police for having overstayed in Hong Kong since 2 January 2014. In due course, he lodged a non-refoulement claim in Hong Kong.

5.  The applicant’s claim was based on his fear of being harmed or killed by the Sunni people and he would be arrested by the police for a false accusation.

6.  According to the applicant, he was a Shia Muslim, a rival religious group with Sunni Muslim. There was a dispute between these groups in 2012 over a right of way through certain area and a fight ensued. He was just a passer-by at the relevant time. He was attacked by the Sunni people and his left wrist was burnt by a fire set up by the Sunni people. He also alleged that the Sunni people went to police to set him up as the person setting up the fire to burn the shops. His mother advised him to leave Bangladesh. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 26 November 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

(b) 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”);

(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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the absence or low intensity and frequency of past ill-treatment is indicative of a small future risk of harm and an individual group of members do not necessarily represent the stance of their sect or community [12-13]; that state protection will be available [14-19]; and that internal relocation alternatives are available and reasonable, if he returns to his country. [20-24]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 14 December 2018, the Board held an oral hearing, which was conducted through the Remote Official Visit System of the Correctional Services Department for the applicant to supplement his claim [31].

10.  Having considered the evidence, the Board found that the applicant failed to establish that there were substantial grounds that he would be subjected to torture [31-46]. In any event, having considered the Country of Origin Information, it found that state protection is available [45], and internal relocation would be a viable option to avoid the Sunni people [53-57]. In conclusion, the Board held the applicant’s claim failed under all applicable risks. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

11.  The applicant has filed Form 86 dated 8 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In the applicant’s affirmation in support of his application, the applicant exhibited the Director’s Decision, the Board’s Decision and a copy of his grounds. The applicant included grounds which, insofar as the Board is concerned, are summarized as follows: the Board’s Decisions were not reasonable and unfair without taking into consideration of BOR 2 risk; and the Board failed to attain a high standard of fairness required by the Wednesbury test.

DISCUSSION

13.  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. I shall consider the merits of the applicant’s case.

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he did not think the Board was wrong. However, he wanted the Court to review the Board’s Decision.

15.  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.”

16.  The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.

17.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.