RASHID v. TORTURE CLAIMS APPEAL BOARD

HCAL 140/2018

[2019] HKCFI 1047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 140 of 2018

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board made on 23 June 2017 refused;and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.  The applicant is a 32-year-old national of Pakistan who entered Hong Kong illegally on 8 January 2016 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 uncle and his sons over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Yaseen Kalan, Tehsil Hazro, Attock, Pakistan where his mother and some of his siblings still reside.  After leaving school he worked as a farmer in his father’s farmland inherited from his grandfather and where his uncle and sons also lived in the same village and farmed on their own share of the farmland.

3.  After his father passed away in 2010, the title of his farmland passed to his immediate family and accordingly the applicant, his mother and his siblings all became the joint owners.  As their farmland was closer to the village main road, it was considered more valuable than those of his uncle and so his uncle had always coveted their farmland.

4.  One day in May 2013 his uncle and his sons came to the applicant’s home and offered to his family to exchange some of his farmland with theirs, and when the applicant on behalf of his family refused the offer, his uncle was displeased and demanded that they should think it over for a week.

5.  One week later his uncle approached the applicant who was working on the farmland and asked about his family’s decision, and when the applicant still rejected his offer, his uncle left angrily.

6.  Several days later one evening when he was on his way home from work, the applicant was ambushed by his uncle and his sons when they beat him with wooden sticks that he lost consciousness, and only woke up in the hospital where he was treated for bruises and swelling resulted from the beating.

7.  Upon discharge from the hospital the applicant reported the attack to the police but was told to settle the dispute with his uncle, and no follow-up action was taken by the police.  

8.  Thereafter there were no further incidents between the two families until one day in October 2015 while the applicant was working on the farmland, his uncle and his sons approached him and raised their offer to exchange the farmland again, and when the applicant refused their offer, his uncle threatened that they would kill him to get the land before leaving angrily.

9.  As the applicant feared that his uncle and his sons were serious about their death threats, and as his uncle was a powerful man in the village with political connections,he decided that it was no longer safe to remain in Pakistan, and so on 7 January 2016 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 March 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

10.  By a Notice of Decision dated 27 May 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

11.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from his uncle or his sons to the applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that as he was not the only owner of the property that killing him would not serve any useful purpose in getting his farmland as evidenced by the fact that his mother and siblings who also owned the land had not been harmed by his uncle since his departure, that his problem with his uncle was a private family dispute 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 199 million people spread across a vast territory of more than 770,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of Pakistan away from his home district in large cities such as Karachi, Lahore, Faisalabad or Rawalpindi where it would be difficult if not impossible for his uncle or his sons to locate him.

12.  By a Notice of Further Decision dated 13 May 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

13.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 7 June 2016, and for which he attended an oral hearing on 21 March 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 23 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

14.  In its decision the Board found numerous inconsistencies and contradictions between what was stated in his NCF and his testimony given in his oral hearing that the applicant failed to prove his account of the past and existing facts to support his claim under any of the applicable grounds, and that in any event COI materials show that both state protection and internal relocation are viable to the applicant as his problem with his uncle is a private land dispute and the alleged risk a localized one that it would not be unduly harsh or unsafe for the applicant as a young man with work experience to safely relocate to other cities in Pakistan.

15.  On 30 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward only one ground: that the Board’s decision is unfair and unreasonable but without providing any particulars or specifics or elaborations as to why it was so.

16.  However, by then the applicant was also way 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.

17.  In the applicant’s case, the three-month period within which he was to file his Form 86 expired on 23 September 2017, and hence he was more than four 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

18.  A delay of more than four months must be regarded as substantial or excessive, for which the applicant did not provide any explanation either in his affirmation or in any of his subsequent letters sent to Court, whilst as noted above his sole vague and unelaborated complaint against the Board’s decision reveals no arguable basis for his intended challenge. As such and in the absence of any legal error or procedural unfairness in the decision being clearly and properly identified by the applicant, I do not see any basis or merits in his intended application.

19.  In the premises and for these reasons, I am 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 substantial delay, 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