Case Detail

HCAL 123/2022

[2023] HKCFI 110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 123 OF 2022

____________

RE:

Azam Adeel

Applicant

____________

Before:

Deputy High Court Judge To in Chambers

Date of Decision:

12 January 2023

______________

D E C I S I O N

______________

INTRODUCTION

1. This is the Applicant’s application by summons filed on 6 October 2022 (the “Summons” or “EOT Appeal Application” as the context requires) for extension of time to appeal the order of this Court dated 13 July 2022 (the “Order”) refusing his application to withdraw (the “Withdrawal Application”) his application for leave to apply for judicial review (the “Leave Application”) of the decision (the “Decision”) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dismissing his appeal against the decision of the Director of Immigration refusing his non-refoulement claim. The Leave Application was made out of time and was deemed to include an application for leave to apply out of time (the “EOT JR Application”).

BACKGROUND

2. By way of background, the Applicant, a national of Pakistan, entered Hong Kong on 26 November 2007 illegally. He raised a torture claim which was rejected by the Director of Immigration (the “Director”). He appealed to the Board against the decision of the Director in his Notice of Decision dated 17 November 2016. His appeal was dismissed by the Board on 22 September 2017. After more than four years and four months, he filed a Form 86 on 8 February 2022 to apply for leave to apply for judicial review of that Decision.

3. In his Form 86, he gave an address in Castle Peak Bay Immigration Centre (“CIC”). As detention in immigration facilities often proved to be transient, it is the standard practice of this Court to seek confirmation from the Immigration Department for the detainee’s address before further processing his application. By a letter dated 21 April 2022, this Court enquired from the Immigration Department whether the Applicant had been removed or is still being detained in CIC or Tai Tam Gap Correctional Institution (“TTGI”) and his latest address if he had been removed. In reply, the Immigration Department provided the Applicant’s residential address in Chatham Road[1].

4. When the Leave Application came to be considered by this Court, notice of hearing on 12 May 2022 (the “notice of hearing”) was sent to the Applicant’s address in Chatham Road. He did not attend the hearing. On 20 May 2022, the Court gave him directions (the “directions”) by letter to file a statement explaining his absence at the hearing and the more than four years’ delay in making the Leave Application and informed him that his Leave Application will be determined on paper. Accepting the Applicant’s assertion that he was detained in CIC, he did not receive the notice of hearing or the directions. These matters were unknown to the Court at the time. But, because of subsequent events, these matters became immaterial and irrelevant.

5. The Applicant wrote to this Court on 6 and 18 June 2022 giving an address in TTGI. He sought to withdraw his Leave Application because his problem in Pakistan had been solved and he wished to return home. He did not know about the hearing and the directions. Having considered his non-refoulement claim form, the Notice, the Decision, all the grounds of application raised in his Form 86, his supporting affirmation, all the papers, and all the circumstances, the Court considered it appropriate to determine his Leave Application and EOT JR Application on paper. The Court found there was no merit in the Leave Application. That was fatal to his Leave Application. It was futile to explore with him his reasons for the delay. And in any event, no explanation for the more than four years’ delay had been proffered. Accordingly, no extension of time was granted for him to file the Leave Application which would only stand to be dismissed. Despite his two letters dated 6 and 18 June 2022, the Withdrawal Application had not been properly made. In view of his intention to withdraw the Leave Application, his Leave Application may also be dismissed for want of prosecution. Hence, the Order was made refusing him leave to apply for judicial review out of time (the EOT JR Application) and dismissing his Leave Application. The Form CALL-1 and Order were served on the Applicant in TTGI on 13 July 2022.

6. Now, the Applicant is obviously not satisfied with the Order. On 11 August 2022, two weeks after the time to appeal expired, he wrote to this Court requesting the Court “not to withdraw” his Leave Application because his “problem … is still not yet solved”. By its letter dated 18 August 2022, this Court informed him that his Leave Application had not been withdrawn but had been determined as if it were extant and refused on its merit. That should be clear to him by reason of paragraphs 3, 4, 5 and 40 of the Form CALL-1. Hence, it would serve no purpose to consider his request to “not to withdraw” his Leave Application.

7. On 25 August 2022, the Applicant wrote in again asserting that he had never received the notice of hearing or the Decision as explanation for his default at the hearing and explanation for the more than four years’ delay in making the Leave Application. That was obviously in response to the Court’s adverse comment on his failure to provide an explanation for the more than four years’ delay in making the Leave Application as mentioned in paragraphs 3 and 4 of the Form CALL-1. But his lack of explanation was never a reason for the dismissal of his Leave Application. The Court replied repeating the contents of its letter dated 18 August 2022 and informed him that his request will not be entertained.

8. On 6 October 2022, the Applicant lodged his Summons applying for leave to appeal this Court’s Order refusing his Leave Application. That Summons was filed two months and ten days out of time. On 19 October 2022, he also applied for legal aid which was refused on 22 December 2022.

THE APPLICABLE LEGAL PRINCIPLES

9. The Summons raises questions about the propriety of the Court’s decision relating to his Withdrawal Application, Leave Application, EOT JR Application and EOT Appeal Application. The Withdrawal Application had not been properly made. Even if it had been, this Court had not given effect to it as the Court had determined the Leave Application on its merit. The legal principles applicable to this Summons are the principles relating to application for leave to apply for judicial review, for making such an application out of time, and for appealing the court’s decision refusing the application for leave to apply for judicial review out of time.

10. As explained in paragraph 5 of the Form CALL-1, 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. In an application for leave to apply for judicial review, the court will only 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[2]. The issues raised by the Leave Application are whether the Decision contains any such vitiating elements, i.e. whether there is merit in the Leave Application.

11. To consider whether to grant extension of time to make the Leave Application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the Leave Application; (iv) the balance of prejudice to the Applicant and the proposed respondent if extension of time is granted; and (v) whether the Leave Application raises any 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[3]. Merit of the Leave Application is a very important factor. However, it was held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[4] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. Lack of merit is usually determinative. If there is no merit, the intended judicial review will serve no purpose and no leave to apply will be granted. The other factors may have a bearing where the merit is not entirely clear.

12. Where the Leave Application was refused by a judge, the applicant may, pursuant to Order 53, rule 3(4) of the Rules of the High Court, appeal against the judge’s order to the Court of Appeal within 14 days after such order. In Jagg Singh and Torture Claims Appeal Board/Non-refoulement Claims Petition Office[5], the Court of Appeal held that in considering whether to extend time for appealing such a decision, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. The considerations are essentially the same as those for applying for the leave to apply for judicial review out of time, except that the court need not balance the prejudice as between the Applicant and the intended respondent. Prejudice to the Applicant is not a consideration because he only has himself to blame for the delay in appealing. Again, lack of merit is also determinative. If there is no merit, even if leave is granted the appeal will only be dismissed. Hence, merit of the Leave Application which was dismissed is the common and most important consideration in the Leave Application, EOT JR Application and EOT Appeal Application.

GROUNDS OF THE INTENDED APPEAL AND ISSUES RAISED BY THIS SUMMONS

13. In his Summons which is repeated word for word in his supporting affirmation, the Applicant sought leave to appeal the Order out of time. He identified the Order which he sought to appeal and asked to be granted “leave to advance a new sole ground of appeal”. But he did not give any particulars about his “new sole ground of appeal.”

14. In his supporting affirmation filed on 13 December 2022, he attached a ten-page submissions. The submissions contain statement of legal principles about the requirement of procedural fairness and reasonableness in non-refoulement proceedings and quotations from the authorities. At page 5 of the submission, he submitted that “the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s Application without properly assess the credibility of the Applicant.” At page 7, he quoted section 37ZT of the Immigration Ordinance relating to considerations which the Board may take into account when considering late filing of Notice of Appeal with the Board. That provision is applicable to appeals before the Board against the Director’s Notice of Decision. It has no application to appeals against the decision or order of the Court of First Instance refusing an application for leave to apply for judicial review of the decision of the Board. In pages 9 and 10 of his submission, the Applicant repeated his explanation for the more than four years’ delay by alleging that he never received the Decision from the Board; that he was only first informed of the Decision when he was interviewed in CIC on 24 January 2022; and that during or after the interview, neither the Board nor the Director has sent him the Decision. He submitted that “it is important for the judge to look at the matter and cause of delay.” He also emphasized that he had never received the notice of hearing from this Court because it was sent to his home address instead of to CIC where he was then detained. The “new sole ground” has not been pleaded.

15. Casting the widest net possible, the grounds of his intended appeal are errors of law, procedural unfairness and irrationality in the Board’s Decision and in the Order of this Court. As against the Board’s Decision, no particulars of any of these vitiating elements or facts have been pleaded other than the six grounds stated in his Form 86. As against this Court’s Order, no error of law has been asserted; but impliedly, he is complaining about procedural unfairness in that the Court did not consider his explanation for the more than four years’ delay and that he never received the notice of hearing and the directions inviting his explanation for the delay; neither of which he is responsible. He also seemed to suggest that the refusal of his Leave Application is Wednesbury unreasonable. The Court shall treat these grounds as his “sole new ground”.

ERRORS OF LAW, PROCEDURAL UNFAIRNESS AND IRRATIONALITY IN THE BOARD’S DECISION

16. The Applicant gave no particulars of his grounds of attack on the Board’s Decision other than those six grounds stated in his Form 86. Some of his grounds are obviously copied from a template which have no bearing to the facts of his case. His grounds are attacks against finding of facts of the Board. He did not attend the appeal hearing before the Board and did not respond to the Board’s request for explanation for his absence. He actually absconded and did not report his recognizance. Much of his evidence is hearsay. The Board considered his evidence inherently incredible and that he failed to discharge the burden of proving his case: see in particular paragraphs 13, 14, 34, 35 and 41 of the Board’s Decision. 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 for errors of law, procedural unfairness and irrationality in the Decision. The Court had rigorously examined the Decision, the Notice, the Form 86, his supporting affirmation and all the papers with anxious scrutiny: see in particular, paragraph 3, 4, 5, 39 and 40. The Court had also carefully considered his grounds of application as set out in his Form 86. Despite those grounds were lacking in particulars, the Court had given them the broadest consideration and had an overall scrutiny of the Decision: see paragraphs 28 to 40. After an anxious scrutiny of the Decision, the Court was satisfied that the Decision was utterly without fault. His claims are not reasonably arguable. His proposed judicial review has no realistic prospect of success. There is no merit in his Leave Application. As already analysed in paragraphs 11 to 13 above, merit of the Leave Application is the single and most determinative consideration in the Leave Application, EOT JR Application and EOT Appeal Application. Absence of merit is fatal to his Leave Application and EOT Appeal Application. It was futile to explore with him his reasons for the delay. Despite some adverse comments about his lack of explanation for the more than four years’ delay, that delay never formed part of the reasons for dismissing his Leave Application and EOT JR Application.

APPLICANT’S EXPLANATION FOR DELAY IN MAKING THE LEAVE APPLICATION

17. Length of the delay in making the Leave Application and in appealing the Order are not in dispute. The thrust of the Applicant’s Leave Application is that he had an explanation for the delay, i.e. he had never received the Decision. The veracity of that explanation has not been explored. Though the Court adversely commented on the credibility of that explanation, it was irrelevant because the Leave Application was determined on its merit and delay never formed part of the reasons for refusing that application. As delay was vigorously argued by the Applicant, it is discussed hereunder for completeness.

18. Despite the very long delay, the Applicant offered no explanation whether in the Form 86 or supporting affirmation. In his Form 86, he made numerous specific attacks on the Board’s Decision. But never in the Form 86 or his supporting affirmation did he make any complaint about non-receipt of the Decision. Now he claims for the first time after more than five years that he had never received the Decision as an explanation for the late Leave Application because at the material time he was detained in CIC. He wrote in his letter dated 25 August 2022:

“I was detained by Immigration since 24 Jan 2022 until now. So how can I received your notice for hearing. I have informed to CPC welfare officer about my judicial review. He reply me we will update you if have any information.
Reason for late application
I did not receive any decision from appeal board and any notice from hearing appeal board. I have to know by my case officer (Imm.D) 24 Jan 2022. He said me your appeal board was refused my non-refoulement claim. He said if you want continue you should apply (J.R.).”

19. In the first paragraph of his letter quoted above, the Applicant sought to explain his non-attendance at the hearing and lack of response to the Court’s directions inviting for explanation of the delay in making the Leave Application. It is accepted that he did not receive the notice of hearing and directions. But that explanation does not explain his more than four years’ delay before making the Leave Application. It is irrelevant.

20. By reason of the long lapse of time and the circumstances, his explanation for that long delay begs belief. The delivery of Hong Kong Post is usually very reliable. It is unlikely that the Decision would have been mis-delivered. During the four odd years since handing down of the Decision, the Applicant would have reported his recognisance to the Immigration Department on numerous occasions. It is unlikely that the Decision had not been drawn to his attention as it had been on 24 January 2022 as alleged by the Applicant. Furthermore, if the Applicant were so concerned about his risks he would not have made no enquiries with the Board during those four odd years about the outcome of his appeal. His conduct is consistent with his intention to delay the refoulement process as demonstrated by his not attending the appeal hearing before the Board and not answering the Board’s request for explanation. His explanation for the four years’ and one month’s delay is inherently improbable. But, the Court must emphasise that that delay never formed part of the reason for refusing his Leave Application and EOT JR Application.

THE APPLICANT’S EXPLANATION FOR THE DELAY IN APPEALING THE ORDER

21. The Applicant never explained the delay in appealing the Order dismissing his Leave Application, whether in his Summons, supporting affirmation or his ten-page submissions. He knew he was out of time and must know the need to give an explanation to support his EOT Appeal Application. He had received the Form CALL-1 on or about 13 July 2022. It was only two weeks after the time to appeal had expired that he made the EOT Appeal Application. Again due to the total lack of merit in his Leave Application, the Court did not find it necessary to explore with him the reasons for the delay in appealing. Leave to appeal out of time will not be granted where the appeal has no prospect of success. Hence, his EOT Appeal Application was also refused.

CONCLUSION

22. For the above reasons, the Applicant’s Summons is dismissed.

( Anthony To )
Deputy High Court Judge

The Applicant is not represented

[1] This might not necessarily be a mistake of the Immigration Department because as events turned out, the Applicant had been moved to TTGI. He might have been released from CIC under the management of the Immigration Department, returned home and re-detained in TTGI under the Correctional Services Department for some other reasons. According to the Applicant, he was in immigration detention since 24 January 2022, initially in CIC and then in TTGI since 31 May 2022. For the purpose of these applications, there is no need to verify his assertion. Even if it were a mistake of the Immigration Department, for reasons as will become obvious in this decision, the mistake is wholly immaterial.

[2] [2018] HKCA 524 at [14(1)]

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

[4] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[5] CAMP 64/2020; [2020] HKCA 844

HCAL 123/2022

[2022] HKCFI 2088

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 123 of 2022

BETWEEN
	Azam Adeel	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	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:

consideration of the documents only; or
consideration of the documents and the Applicant being absent in open court;

Order by Deputy High Court Judge To:

1. Extension of time to apply for leave to apply for Judicial Review be 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 filed on 8 February 2022 (the “Leave Application”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 22 September 2017 (the “Decision”) affirming the Notice of Decision of the Director of Immigration (the “Director”) dated 17 November 2016 refusing his application for non-refoulement protection (the “Notice”). According to Order 53, rule 4(1) of the Rules of the High Court, this application is more than four years out of time.

2. A hearing was scheduled for him on 12 May 2022, but he did not appear. On 20 May 2022, the Court gave him directions by letter to file a statement within 14 days from the date of the letter stating his reasons for not attending the hearing and the more than four years’ delay in making the Leave Application. He was also informed that his Leave Application will be determined on paper after 21 days from the date of the letter. The Applicant replied by letter dated 6 June 2022 that he wished to withdraw his Leave Application and to return to Pakistan “as his problem there has already solved”. In a subsequent letter dated 18 June 2022, he repeated his wish to withdraw his leave application.

Discussion and conclusion

3. Despite the Court’s specific request, he did not give any explanation for the more than four years’ delay in making the Leave Application. He has been sleeping on his rights. This is precisely the type of case to which the dicta of Litton NPJ in Po Fun Chan v Winnie Cheung[1] applies. For these reasons alone, the Applicant should be barred from pursuing his rights in a judicial review.

4. The Applicant has a history of default. He defaulted at the hearing before the Board on 18 July 2017 and did not respond to the Board’s notice inviting for an explanation for his default. Again, he defaulted at the hearing before this Court. He had not withdrawn the Leave Application before the hearing. Now, he expressed his wish to withdraw his Leave Application and confirmed that he wished to return to Pakistan as his problems there have been solved. But no application for withdrawal has been properly made. His letter only evinced he had no intention to prosecute his Leave Application.

5. The function of the Court in an application for judicial review is to intervene a decision of an administrative tribunal for error of law, procedural unfairness, and unreasonableness or irrationality in the decision. Having rigorously examined the Decision, the Notice, the Form 86, his supporting affirmation and all the papers with anxious scrutiny, 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. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success. In the circumstances, it is appropriate that his Leave Application be dismissed for want of prosecution.

Summary of the Decision and grounds of application

6. By way of completeness, the following is a summary of the Applicant’s non-refoulement claim. In gist, he claimed that he will be harmed by Iftikhar, Tariq and Zaheer (collectively, “the Trio”) and some other Sunni Muslims (collectively including the Trio, “his Enemies”). Iftikhar and Tariq are members of Pakistan People’s Party (“PPP”).

7. The Applicant is a national of Pakistan, now aged 38. He entered Hong Kong on 26 November 2007 illegally and was arrested by the police on the same day. He raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 8 December 2007 which was rejected by the Director on 21 September 2011. That decision became final. Following the implementation of the Unified Screening Mechanism (“USM”), his claim was also assessed on BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 17 November 2016, the Director rejected his claim under the remaining three grounds.

8. The Applicant was born in Rawalpindi, Pakistan. He is single and his family resides in Pakistan. He and his family supported the party Pakistan Muslim League (Q) (“PML(Q)). The member of PML(Q) are Shiya Muslims.

9. In 2007, the Shiya Muslims in his village wanted to build a place of worship for Shiya Muslims (Immam Bargah) on a plot of land owned by the Applicant’s grandfather. On 22 August 2007, they attended a kick-off ceremony for the construction work on the land. However, nine of his Enemies arrived and told them to stop building for they were going to build their own mosque on the same site. A fight broke out and lasted about 4 to 5 minutes, one of his Enemies fired shots and killed one and injured another of his father’s friend. The Applicant fled the scene. He did not know the names of the victims.

10. His grandfather filed a First Information Report against his Enemies on the same day and told the police that the Applicant was one of the witnesses. His grandfather did not give the names of other Shiya Muslims at scene. The Trio then questioned his grandfather about the report and threatened his grandfather that the Applicant would be killed if he testified against them.

11. On 23 August 2007, while the Applicant was in his shop, the Trio and three of his Enemies arrived at his home and threatened to kill him. The Applicant went back home immediately upon receiving his father’s call about the incident. While he was away from his shop, the Trio and his three of his Enemies went to his shop and broke the shop windows. They left a message to the Applicant’s assistant that the Applicant would be killed if he testified against them. The Applicant filed a First Information Report about the criminal damages with the Gujar Khan Police Station, but no action was taken by the police.

12. On his parents’ advice, the Applicant moved to stay with his friend in Rawalpindi to avoid his Enemies. However, his Enemies came to his friend’s house and asked for his whereabouts.

13. On 12 September 2007, the Applicant moved to Mirpur and stayed in a shrine. However, his Enemies located him on 1 October 2007. Some of them were armed with pistol or wooden stick. They punched him, kicked him and beat him with wooden sticks for about 5 to 7 minutes until the police and many people arrived. The Applicant suffered open wounds on his head, right hand and left elbow, and his right ring finger was broken. He received treatment in a hospital. Despite he was advised to stay in the hospital for a few days, he left after a few hours for fear of further attacks. He filed a First Information Report against his Enemies. The police recorded his complaint but no action was taken.

14. Starting from 5 October 2007, the Applicant stayed in a shrine in Karachi. Again, his Enemies located him on 7 November 2007. They fired a shot at him, but it missed. Meanwhile, the police arrived and he made a report. He told the police that he knew the men and offered to show the officers their whereabouts, but the police said that they would do it by themselves.

15. Thinking that his Enemies could locate him anywhere in Pakistan, the Applicant fled to Hong Kong on 15 November 2007.

16. He said in his Supplemental Clam Form dated 5 September 2014 that on or about 24 August 2007, his Enemies went to his grandfather’s shop. They renewed their threat to kill the Applicant if he testified and then shot his grandfather twice on the left thigh to deter his grandfather from testifying about the murder. Subsequently, his grandfather fled to Dubai.

17. The Applicant maintained constant contact with his family members once a week. He learnt on 5 September 2011 that the Trio came randomly to his house to look for him and renew their threat to kill him.

18. On 17 August 2012, his Enemies set fire to his house as a lesson for his family ignoring their warning to change their religion. His family members suffered injuries and were admitted to the Civil Hospital. When his grandfather returned from Dubai to visit the Applicant’s family in the hospital, his Enemies shot and killed him. His brother, Zeehan, gave a statement to the police, but police took no action.

19. On 27 August 2012, Zeehan was attacked by his Enemies and suffered head injuries and fractures to his right arm and ribs. He was hospitalised and disappeared. His mother believed he was kidnapped by his Enemies. She pleaded the Applicant not to return to Pakistan. Since November 2012, the Applicant was unable and did not contact his family.

20. The Applicant claimed that the Pakistani government would not offer protection to its citizen by taking action against corrupt police officers. There were many cases of Shiya and Sunni attacks in his country and no action was taken by the government. He said he could not avoid the risk by internal relocation as he and his family had already tried to relocate to multiple places but his Enemies could still locate them.

The finding of the Board

21. A hearing was scheduled for the Applicant to appear before the Board on 18 July 2017. The notice of hearing was sent to his last known address. He did not appear. Pursuant to section 15 of Schedule 1A of the Immigration Ordinance and paragraph 11 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme, the Board gave notice to the Applicant of its intention to determine his appeal in his absence and invited him to provide a written explanation of his failure to attend the hearing. The Applicant did not respond.

22. The Board noted the many major inconsistencies in the Applicant’s evidence in his questionnaire, representation and SCF which undermined his credibility and the credibility of his case. Hence, it scheduled a hearing to give him the opportunity to explain the inherent improbability of his case. As the Applicant did not appear at the hearing and did not explain his absence, the Board found he had failed to establish the credibility of his account and that there is a real chance or risk or substantial grounds for believing that the feared harm will materialize if he returns to his home country. In other words, he failed to establish the factual basis in support of his entitlement to non-refoulement protection.

23. However, the Board went on to assess his claim on the assumption that his account was broadly true. On his evidence, the Board found the injuries and ill-treatment he suffered did not attain the minimum level of severity as to amount to torture for the purpose of BOR 3 Risk[5]. As the shooting incident occurred in 2007, more than 10 years had lapsed, the Board held that the “chances that [the Men] would now risk resurrecting an incident in which they were involved in murder (allegedly) by seeking to harm the [Applicant] are remote”[6].

24. In relation to persecution risk, the Board found that the alleged fear of harm, even if genuine, arose out of a personal dispute between the Applicant and his Enemies and not for reasons of race, religion, nationality, membership of a particular social group or political opinion. It therefore did not fall within the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

25. The Board found the Applicant had failed to adduce any evidence to establish a personal and real risk of being arbitrarily deprived of his life as to entitle him to protection under BOR 2 Risk ground.

26. On the basis of credible Country of Origin Information (“COI”), the Board was satisfied that state protection is available and the Applicant has failed to show that there is a history of him being denied protection by the state[7]. As for internal relocation, the Board noted that as an able-bodied adult of some thirty years old, it would not be unduly harsh or unreasonable to expect him to relocate to other parts of Pakistan.

Grounds for judicial review

27. The Applicant advanced six grounds for judicial review in his Form 86. These are considered below.

Ground (1) – He believed the Board reached the Decision wrongly; the Decision was not reasonable and fair as required by the Wednesbury test

28. This is a complaint that the Decision is irrational. However, the Applicant did not give any particulars of the unreasonableness or unfairness alleged. The Court would reconsider this complaint of irrationality in its overall scrutiny of the Decision.

Ground (2) – The Director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence”

29. The Applicant alleged under this ground that he was “tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles”. The Board considered this issue in paragraphs 60 to 68 of the Decision.

30. The only evidence that the Applicant could possibly rely on as support for his argument is his allegations that Iftikhar and Tariq are members of the PPP; Iftikhar was a nasim of the local authorities and Tariq was a member of the provincial assembly. Not only was there no proof of these allegations, the evidence was that when they and his Enemies approached the Applicant or his family over the various occasions, they were not accompanied by the police. Indeed, during one of the assaults on the Applicant, his Enemies fled upon arrival of the police.

31. There was no evidence of maltreatment of the Applicant by the Pakistani government or anyone in official capacity or evidence of instigation or connivance on the part of the police. The Applicant was never arrested, detained or imprisoned in his home state. He was able to leave Pakistan freely from official immigration channel using his passport indicating that he was not a target or person of interest to the Pakistani government.

32. The only other possible evidence which the Applicant could rely on is his allegation of inaction by the police to his or his family’s complaint. However, the police did acknowledge their complaints and issued First Information Reports. The Applicant complained that no arrests were made. On the other hand, there was no follow up by the Applicant either. He did not really know what action the police had taken or failed to take and the reason for not taking action. He mentioned about the police declining his offer to locate his Enemies. But the evidence was not that the police refused to entertain his complaint. His evidence was that the police officer said they would do that themselves. Then, the Applicant fled Pakistan and he did not follow up.

33. It is possible that the police had not been effective or efficient as acknowledged in the COI. On the other hand, there are COI suggesting that the situation is improving in Pakistan and there are avenues for complaint against police abuses. The Applicant never complained to the higher authorities or the Ombudsman against his alleged police inaction. The evidence is far from being sufficient to suggest, let alone to support, his allegation that his injuries or ill-treatment were inflicted by his Enemies with the authority, consent, connivance or acquiescence of the police or the authority.

Ground (3) – The Board acted unreasonably and committed procedural unfairness by placing too much weight on COI unfavourable to the Applicant and ignore those which support the Applicant

34. The essence of the Applicant’s complaint is that the Board failed to take into account his personal background and experience and failed to give enough weight to COI supporting his claim that the police will not protect him.

35. In substance, this ground is a challenge of the Board’s finding of fact. The COI relied on by the Director to which the Board referred are all from official, authoritative and credible sources. The Board had carefully considered the information. As for the weight to be given to the COI, it is a matter for the Board having regard to the nature of information, the circumstances the information was obtained etc. It is a finding of fact solely within the province of the Board, which the court in a judicial review will not interfere unless the finding involved errors of law, procedural unfairness or irrationality. The Court would reconsider this ground in its overall scrutiny of the Decision.

Ground (4) – “The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me & unreasonably requires me to response to questions that I was not in a position to offer any response. The Adjudicator failed to take into account the nexus of political parties & official corruption which exists in my country, making the persecution effectively persecution by the State.”

36. This ground is quoted in its entirety. It was probably copied from a template which had no bearing to the facts in this case because the Applicant did not appear at the hearing and never answered or made to answer any questions from the Board. To the extent that this ground is applicable to the facts of this case, it is a challenge of the Board’s finding of fact, which the court in a judicial review will not intervene except the finding involves errors of law, procedural unfairness or irrationality. The Court would reconsider this ground in its overall scrutiny of the Decision.

Ground (5) – The Director “failed to take such argument into account” or “give enough weight to such argument before reaching the Decision”; this is “a clean case of unfair attitude”; “failed to attain the high standard of fairness required by the Wednesbury test”

37. The Applicant gave no particulars of “such argument”, or “unfair attitude” or the failure to attain the high standard of fairness. Furthermore, giving weight to evidence and arguments and making finding of fact are the functions exclusively for the Board. The Board alone assesses the evidence and makes finding of facts, which the court in a judicial review will not intervene, unless such finding involves error of law, procedural unfairness or the Decision is irrational. The Applicant’s complaint under this ground would be reconsidered in the Court’s overall scrutiny of the Decision.

Ground (6) – The Decision was irrational as the Board should have allowed his appeal

38. This ground is a replication of Ground (1), in respect of which the Applicant gave no particulars. In substance, this ground is a challenge of the Board’s finding of fact, which the court in a judicial review will not interfere unless the finding involved errors of law, procedural unfairness or irrationality. The Court would reconsider this ground in its overall scrutiny of the Decision.

Overall scrutiny of the Decision

39. The Court was satisfied that there was no error of law in the Board’s 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. There were no such vitiating elements in the Decision. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. There are no merits in the intended application for judicial review.

40. 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 must be refused.

Dated 13^th day of July 2022.

	( Allen LEE )
	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

Notesfor the Applicant: If leave has been granted, the Applicant or his solicitors must:
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)).		Sent to the Applicant on 13/7/2022 Azam Adeel Applicant’s ref. no: Nil.		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 13/7/2022 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6212/17/2/211/P1340 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 556/14 (formerly RBCZ 2002284/14) QA T/C 427/08 Pt. 2 (formerly RBCZ 129/08) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[2] 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”)

[3] 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

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

[5] [47] of the Board’s Decision

[6] [71] of the Board’s Decision

[7] [92] of the Board’s Decision

RE AZAM ADEEL

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Files (2)

	consideration of the documents only; or
	consideration of the documents and the Applicant being absent in open court;