AHMAD ADEEL v. TORTURE CLAIMS APPEAL BOARD

HCAL 2413/2020

[2022] HKCFI 783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2413 of 2020

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 oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 27 March 2020 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.     The Applicant is a 28-year-old national of Pakistan who entered Hong Kong illegally on 3 July 2015 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncles and cousins over a land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.     The Applicant was born and raised in Hafizabad, Punjab, Pakistan where he in 2007 inherited a piece of farmland from his father in his home village but which was coveted by his paternal uncles and cousins who demanded that the land be shared with them, and when the Applicant refused, his uncles and cousins proceeded to make threats against him, and after several attacks by them during which he suffered injuries, the Applicant fled to Lahore where he found a job working as a waiter.

3.  However, one day in March 2014 the Applicant saw his cousins in Lahore and suspected that they were there looking for him, and so he felt it was no longer safe to remain in Pakistan, he therefore on 29 June 2015 departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 14 August 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncles and cousins upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of them to seriously harm or kill him other than to put pressure on him over their land dispute, that it was in any event a private family dispute over land in their home village without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 204 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for his uncles or cousins to locate him.

6.  On 24 August 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before his appeal could be heard, the Applicant on 3 January 2020 wrote to the Board applying to withdraw his appeal as he considered it safe to return to his home country.

7.  By a letter dated 27 March 2020 the Board upon being satisfied that the Applicant’s request to withdraw his appeal/petition was freely sought, that he had good reason for his proposed withdrawal, and that he understood the consequences of the withdrawal that it directed that his appeal/petition be withdrawn and that no further action would be taken by the Board in respect of his appeal/petition, and that it also confirmed the decision of the Director.   

8.  Almost 9 months later on 9 December 2020, the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he stated as follows:

“I make this Affirmation with the support of my application for leave to apply for judicial review (form 86) of the decision made by torture claims appeal board. NOD dismissing the appeal by ruling that the applicant fails to establish a case for non-refoulement claims. I decide to back Pakistan and I withdrawal my case from TCAB before hearing because my family and some of villagers solved my problems with opponents, but suddenly when they heard about me that I am coming back to Pakistan, after that they attack on my brother to get revenge bcz of the past, and they were sured that I am a refugee here and I cant cancel my ticket to stay and ask protection from the HK government, my brother called me before 2 days of my flight to Pakistan that don’t come the enemy again attacked.”

9.  By then the Applicant was however seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

10.  As the last day of the three-month period for him to file his Form 86 fell on 27 June 2020, the Applicant was therefore more than 5 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

11.  In the Applicant’s case, a delay of more than 5 months must be considered as extremely substantial and inordinate, for which he has failed to provide any explanation either in his Form or his supporting affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to see any good reason for his serious delay.

12.  As for the merits, if any, of his intended application, as noted above the Applicant in his affirmation explained essentially that he withdrew his appeal to the Board in the belief that it would then be safe for him to return to his home country, but as it turned out not to be the case, he therefore wanted to restore his appeal before the Board for the determination of his non-refoulement claim.

13.  In Re Das Purnima Rani, CACV 85/2019 [2019] HKCA 669, the Court of Appeal held that once an appeal against the Director’s decision has been validly withdrawn and dismissed by the Board, the appeal is no longer extant and that the Board has no jurisdiction to further deal with the appeal, as Lisa Wong J in giving the judgment of the Court explained at [41]:

“Once the Board dismisses an appeal against the director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. As analysed by DHCJ Yee at [36]-[40] and [47]-[48], s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.”

14.  In the present case, I do not find anything in the Applicant’s affirmation as contesting the validity of his earlier withdrawal of his appeal to the Board against the Director’s decision, and as found by the Board, the Applicant had clearly then on 3 January 2020 made a deliberate and informed decision to withdraw his appeal in order to return to his home country, and that it was only his subsequent change of mind as a result of information from his family in Pakistan but which in my judgment could not invalidate his earlier withdrawal of the appeal before the Board. As such his appeal was no longer extent and that the Board has no further jurisdiction to re-open or reinstate the appeal, and hence any complaint by the Applicant that the Board failed to allow him to do so is simply not reasonably arguable in the circumstances, and in the absence of any error of law or irrationality or procedural unfairness in the Board’s decision being clearly and properly identified by him, I do not find any reasonably arguable basis for the Applicant to challenge the Board’s decision either.   

15.  The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

16.  Furthermore, the Applicant recently on 14 February 2022 filed an affirmation to request to withdraw his application as his problem has now been resolved and that he wants to return to his home country as soon as possible.   

17.  In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, and given his latest confirmation that his alleged problem in his home country has been resolved, I refuse to extend time and accordingly dismiss his leave application.

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