AWAN ABDUL WAHAB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 994/2019

[2023] HKCFI 1835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 994 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 Applicant being present in open court;

1.      The applicant’s application for leave to apply for judicial review of the Director’s First Decision is dismissed;

2.      The applicant’s application for leave to apply for judicial review of the Director’s Second Decision is dismissed; and

3.      The applicant’s application for leave to apply for judicial review of the Board’s Decision is dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of (1) the Decision of the Director dated 19 July 2016 (“the Director’s First Decision”); (2) the Decision of the Director dated 21 December 2016 (“the Director’s Second Decision”) and the Decision of the Adjudicator dated 14 March 2019 (“the Board’s Decision”).

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed to the applicant and the applicant appeared before the Court on 16 January 2023.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, 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 is a national of Pakistan.  He was arrested by the Hong Kong police on 30 November 2011 for illegal remaining.  On 3 December 2011, he raised a torture claim which was later withdrawn.  By way of a letter dated 20 February 2012, the Immigration Department informed him that his torture claim was treated as closed.  On 9 July 2013, he lodged a CIDTP claim. His claim was thus assessed on all applicable grounds other than that on torture risk^[1]. The applicant claimed that, if refouled, he would be harmed or killed by Bilal’s three brothers who accused him of killing Bilal.  He also feared that he would not get a fair trial upon return. 

5.  In brevity, the applicant and his cousin Ali were accused by Bilal’s brothers for murdering Bilal on 19 March 2011.  The applicant believed that he was framed of this murder due to his close relationship with his cousin.  On the same night as the alleged murder, the three brothers fired gunshots outside the applicant’s home and they also did that two days later outside Ali’s house.  Feared for his safety, the applicant and his family escaped outside of his home village.  Thereafter, the applicant learned that he became a wanted person.  As his other family members were not wanted, they moved back to the home village.  The applicant’s father also sought legal advice and obtained court documents.  However, the applicant was not made aware of the contents. Instead, his father simply told him to leave Pakistan.  As a result, the applicant eventually fled to Hong Kong for protection.  On 18 September 2013, the applicant learned that his uncle, who took care of him and Ali, was murdered by the three brothers.  Details of his claim are set out at paragraph 12 of the Notice of Decision dated 19 July 2016 by the Director (the “Director’s First Decision”).

The Director’s Decision

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

a.     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”);

b.     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

c.     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”).

7.  By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of BOR 3 risk and Persecution risk.  In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments from the three brothers indicated an unlikelihood of future risk of harm [19]-[20]; (ii) state protection would be available to him [21]; and (iii) internal relocation was a viable option [22]-[25].

8.  For reasons set out in the Notice of Further Decision dated 21 December 2016, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

9.  The applicant only appealed the Director’s Second Decision to the Board.  He filed his notice of appeal/petition on 20 February 2017, which was around six weeks late [15].  As a result, the Board proceeded to determine whether to allow the applicant’s late filing on paper. 

10.  The Board refused the applicant’s explanation that, due to a change of address which he notified the Immigration Department, he failed to receive the Director’s Second Decision on time [16]-[19].  It further considered all the available documents, and stated that the merits of the applicant’s non-refoulement claim were insufficient to weigh in favor of its discretion to allow the late fling [20].  Therefore, since there was no special circumstance to warrant the late filing, the Board refused to exercise its discretion and rejected the request for late filing.

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

11.  The applicant has filed Form 86 dated 11 April 2019 for leave to apply for judicial review of the Director’s First Decision, the Director’s Second Decision and the Board’s Decision.

12.  It should be noted that he had not appealed the Director’s First Decision to the Board under section 37ZR of the Ordinance.

13.  In his affirmation in support of his application, he did not raise any specific ground.

DISCUSSION

14.  The applicant’s application for leave to apply for judicial review of the Director’s First Decision fails in limine because he has not exhausted the revenue of appeal to the Board under the Ordinance^[2] and the applicant has not been to show that there are special circumstances in this case that warrant this Court to exercise its discretion to otherwise permit his application. As such, the remedy of judicial review is not available to him.  In Haider Zeeshan v Torture Claims Appeal Board/Non-Refoulement Clams Petition Office and The Director of Immigration [2018] HKCFI 2647, 5 December 2018, DHCJ Lung, held:

In De Smith’s Judicial Review 7^th Edition, Harry Woolf, Jeffrey Jowell, Andrew Le Sueur, Catherine Donnelly and Ivan Hare, Sweet & Maxwell:

At para. 16-018:

“The most straightforward substitute remedy is where the legislation provides an appeal. Judicial review is essentially a mechanism to be used where there is no statutory right of appeal. In almost all cases, the Administrative Court will regard a statutory appeal, whether to a court or a tribunal, as a proper substitute for judicial review though exceptional circumstances may dictate otherwise.”

At para. 16-091, it says:

“The tribunal system …intersects with judicial review in two main ways. First, the tribunal system provides a more specialized method of supervising the legality (and in many cases the merits) of decision-making by public authorities…. The Administrative Court will be reluctant to grand permission to proceed with a claim for judicial review. Secondly, judicial review may in some situations be used to challenge the lawfulness of decisions taken by a tribunal.”

At para. 16-020, it states:

“The powers of a tribunal or court hearing an appeal will often be at least as extensive as those in judicial review (and perhaps greater). In most situations there can be no constitutional or practical objection to the Administration Court routinely refusing permission to proceed with a judicial review claim where there is a statutory appeal to a tribunal or a court. To hold otherwise would risk subverting Parliament’s intention in creating such appeals. …”

See also, 53/14/13 of The Hong Kong Civil Procedure 2023, Vol. 1.:

“… … If an appeal on the merits exists, that avenue should normally be tried before applying for judicial review. However, in exceptional cases, the courts will permit an applicant to apply for judicial review even though there is an alternative remedy that has not been tried …”

15.  The applicant’s application in respect of the Director’s First Decision is therefore dismissed.

16.  The applicant’s application for leave to apply for judicial review of the Director’s Second Decision should also be dismissed as he had already appealed the Director’s Second Decision to the Board. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 (CACV 54/2018) held:

“45. … 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. … 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.”

17.  The issue before this Court is therefore whether the Board is correct in refusing to extend time for the applicant to file his notice of appeal against the Director’s Second Decision in respect of BOR 2 risk.

18.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19.  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 understood the Board’s Decision and that he is married in Hong Kong with 2 children.  He further asked this Court to consider the documents in relation to his uncle’s death in Pakistan and the warrant of arrest against him.  This Court refused to accept the documents because those documents should have been produced to the Director or the Board for investigation into the facts of his case.  This Court has no power to make investigation itself, as held by the Court of Appeal in the case above.  In fact, I considered that those documents are irrelevant as to whether the Board should extend time for him to file his notice of appeal out of time.

20.  Having considered the evidence, the Board, in the Board’s Decision, held that the Board’s Decision had been sent to the applicant’s last known address:

“17. The Petitioner has stated in his Notice of Appeal/Petition to the Board that he made the application late because ‘for some reason’ his new address was not updated with the ImmD….

19. I am not satisfied on the evidence before me that the Petitioner notified ImmD of his change of address. I am satisfied that the Petitioner was correctly notified by ImmD of the Notice of Further Decision at the last [known] address that he had notified to ImmD. The Petitioner is required under the Petition Guide to notify ImmD and the Board of any change of address. I am not satisfied that he did so, and I consider that this is the reason he did not receive the decision in time to enable him to lodge an application to the Board within the required time frame.

20. … … I also consider that the reasons for the late filing are not persuasive.  I am mindful of the fact that the discretion is broad, but the focus of the discretion remains on the reasons as to why the Petitioner made the late filing.  I have had regard to the grounds of appeal/petition advanced in the Notice of Appeal/Petition and I note that several additional documents have been provided to the Board.  However, I am not assessing the Petitioner’s non-refoulement claim and I consider that the merits of his non-refoulement claim are insufficient to weigh in favour of the discretion to allow his late filing.  There are no other matters known to the Board or revealed by the factual basis of the Petition’s claim, which might amount to special circumstances which would make it unjust not to allow the late filing of the appeal/petition.”

21.  I consider that the Board was entitled to hold the applicant to the consequences for not updating his address with the Immigration Department. The Court of Appeal in Re: Zamora Rowel Espiritu [2022] HKCA 1883, Hon Barma JA and Au JA, 30 December 2022 held:

“18. In any event, it is incumbent upon the applicant to notify the court of any change of address as soon as possible, and any consequences of having failed to do so lie with him.”

The same rationale applies to the Immigration Department.

22.  The applicant has raised no valid ground to challenge the Board’s findings in support of the Board’s Decision, refusing to extend time for him to file his notice of appeal. Therefore, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

DISPOSITION

23.  The Court makes an order in terms as follows:

(1)   the applicant’s application for leave to apply for judicial review of the Director’s First Decision is dismissed;

(2)   the applicant’s application for leave to apply for judicial review of the Director’s Second Decision is dismissed; and

(3)   the applicant’s application for leave to apply for judicial review of the Board’s Decision is dismissed.

 

 

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