KHAN MUHAMMAD NAEEM ALIAS MUHAMMAD NAEEM v. TORTURE CLAIMS APPEAL BOARD

HCAL 799/2021

[2021] HKCFI 2635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 799 of 2021

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of Pakistan who entered Hong Kong illegally on 12 May 2009 and was arrested by police on 13 May 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by some men claimed to be the police and federal agents for being involved in a protest in Karachi in 2007 during which some people had been killed. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Karachi, Pakistan. After leaving school he worked as a property dealer and supported the political party Pakistan Peoples Party (“PPP”) regularly attended their local meetings and rallies.

3.  One day in May 2007 he together with his fellow PPP supporters participated in a mass protest in Karachi, but when the police tried to disperse the protesters, there were violent resistances from the PPP supporters that the police decided to arrest them, but the Applicant managed to escape and made his way home.

4.  Later the Applicant heard that someone had been shot and killed during the protest that the police were arresting PPP supporters, and one night some unknown men claiming to be the police and federal agents came to his home and took him to some place where he was detained and interrogated for days about his involvement in the protest during which he was beaten with punches but was eventually released some 2 weeks later.

5.  Sometime later in June 2008 the Applicant was again taken away by the same group of men for further interrogation about his involvement in the protest in Karachi, but again he was released about one week later with a warning that he might be arrested and charged later when they obtained more evidence against him.       

6.  After his release the Applicant left Karachi to take shelter in a relative’s place in Khannewal City, and later travelled to Attock City in April 2009 when he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 29 December 2014 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any scheduled screening interviews before the Immigration Department due to alleged medical reasons.

7.  While being released on recognizance the Applicant had been re-arrested by police twice for failing to report on his recognizance, and as a result had been detained at the Castle Peak Bay Immigration Centre (“CIC”) for sometimes before being released again on recognizance.       

8.  By a Notice of Decision dated 31 October 2016 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 (“Ordinance”) (“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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim of being ill-treated by unknown strangers claimed to be police or federal agents in the absence of any reliable evidence in support, that if those people were indeed the police or federal agents then the Applicant had fled Pakistan to avoid lawful arrest and due process of the law in his country as a fugitive of the law that he would not be entitled to non-refoulement protection, that if on the other hand those people were criminals or supporters of rival political parties and in the absence of 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 if the Applicant upon return to Pakistan is to be arrested charged and prosecuted for whatever crime he may have committed in the past he will be entitled to a due process and to defend his case in a court of law within the legal system of his home country, as well as reasonable internal relocation alternatives within Pakistan with a large population of 196 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 adult with working experience to move to other part of Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for his perceived enemies to locate him.

10.  More than 4 years later on 31 March 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was clearly filed outside the 14-day period required by Section 37ZS of the Immigration Ordinance, and for which the Applicant in section 5 of his Notice provided the following statement of the reasons for his late filing:

“My treatment is going on since 2016 till now. If you want, you can check my medical record. Because I am in CIC so I cannot submit myself.”

11.  It would also be relevant to note that the Applicant had stated the following in section 2 of his Notice of Appeal for his grounds of appeal:

“RBCL 2320/09 My name is Muhammad Naeem Khan. I am in CIC since 23^rd February. I am unwell since 2016 and my treatment is still ongoing because of which I jumped bail. I request the Immigration that the decision that has been taken for me, knowing it incorrect, I am not satisfied with it and due to being in CIC I cannot submit any documents. When I go out I will submit any documents you require. The date of my treatment is also coming soon. Please grant me bail so that I can get myself treated. The disease that I have, its name Confirme CA MRSA Single Isolation Room

HIV Positive

Outside also there is problem of virus and I have a 15 month old son and my wife is also pregnant. My wife is also unwell. I am very worried. Please grant me bail so that I can take care of my child and wife. Some hospital documents are with CIC and the rest I will submit after I go out.”

12.  Pursuant to Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal.

13.  By a written notice dated 4 May 2021 the Board refused to allow the late filing of his Notice of Appeal upon finding that his delay of more than 4 years as serious and significant, that his bare statement of being sick and receiving treatment since 2016 even if true was not sufficient reason for his such serious breach of the rules, that his stated grounds of appeal do not reveal any merits in his intended appeal, and that there were no other matters known to it or revealed by the factual basis of the Applicant’s claim which might amount to special circumstances which might make it unjust not to allow the late filing of the Applicant’s Notice of Appeal.      

14.  On 31 May 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he does not agree with the decision as he cannot go back to his country where his life would still be in danger but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  In the Applicant’s case, the Board refused to allow the seriously late filing of his Notice of Appeal for the thorough and detailed analysis and reasoning set out in paragraphs 12 – 20 of its decision including the merits of his appeal as held by the Court of Appeal in Re Qasim Ali [2019] HKCA 430 to be part of the matters required to be taken into account under Section 37ZT(2)(b) of the Ordinance, and in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.  As noted in the Board’s decision, if indeed the Applicant had since 2016 been receiving medical treatment for HIV related health issue as alleged in his Notice of Appeal, the Board was entitled to raise issue with his failure to submit even one piece of medical evidence to corroborate his bare assertions, while his proposal to be released from CIC so that he could go home to take care of his wife and child show that he could not have been in such serious medical condition so as to prevent him from filing his Notice of Appeal to the Board anytime within those 4 years after the Director’s decision. As such the Board was in my view wholly correct to find the Applicant to have failed to provide any good reason for his serious breach.      

18.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in the Director’s consideration and assessment of the Applicant’s non-refoulement claim or in the Board’s decision in refusing to allow the seriously late filing of his Notice of Appeal.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse 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