MUHAMMAD SALMAN ALIAS SALMAN AHMED SANI v. TORTURE CLAIMS APPEAL BOARD

HCAL 694/2020

[2021] HKCFI 1622

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 694 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 to apply for judicial review refused; and

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

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Pakistan who last arrived in Hong Kong in May 2003 with permission to remain as a visitor for 14 days but he subsequently overstayed and was arrested by the police on 4 September 2005 for various offences including possession of an identity card of another person, and for which he was subsequently convicted and sentenced to prison for 14 months. Upon his discharge and referred to the Immigration Department for deportation, 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 certain local supporters of the rival political party Pakistan People’s Party (“PPP”) and/or by the police over a false charge. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Kotli Loharan, West Sialkot, Punjab, Pakistan. After leaving school he followed his family’s tradition and supported the political party Pakistan Muslim League (N) (“PML(N)”) where his father was a counsellor, and regularly participated in their local meetings and election campaigns when violent confrontations between their supporters with those of PPP were common.

3.  During one such confrontation in 1993 when the local PPP leader was killed by some PML(N) supporters, the PPP people took revenge by killing 5 PML(N) members afterwards, and they also made threats against the Applicant’s father and his family until the police intervened.

4.  In May 1998 the Applicant was abducted by some of the PPP supporters and was beaten and tortured for 2 days before he was released, but later when one of those PPP supporters was killed by the PML(N) people in revenge, the Applicant was suspected to be involved and was arrested and detained by the police for 10 days during which he was tortured during interrogation before he was eventually released on bail.       

5.  As the Applicant became fearful for his life, he therefore departed Pakistan in April 2000 for China, and from there he travelled to Hong Kong in May 2000 as a visitor with a false identity, but he overstayed and was subsequently arrested by the police and was deported on 3 July 2000 to Pakistan.

6.  The Applicant did not return to his home district, and in September 2000 he again departed Pakistan for China, and from there he again travelled to Hong Kong using a false identity, and again he overstayed until his arrest by the police on 19 January 2002, and for which he was subsequently convicted and sentenced to prison for 8 months, and upon his discharge he was repatriated to Pakistan on 5 July 2002.

7.  In May 2003 the Applicant again departed for China, and from there he for the third time travelled to Hong Kong as a visitor using his own identity, and again he overstayed until his arrest by police in September 2005, and after his discharge from prison for the various offences mentioned above and before his deportation, he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 15 May 2014 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any of the scheduled screening interview before the Immigration Department due to various reasons.

8.  By a Notice of Decision dated 7 December 2015 the Director of Immigration (“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 Ordinance, Cap 383 (“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 all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that the risk of harm from his perceived enemies upon his return to Pakistan is real and foreseeable due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he had been specifically targeted by those local PPP supporters or that he was wanted by the police over any criminal offence or investigation, that in the absence of reliable evidence 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”) shows 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 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 parts of Pakistan away from his home district in large cities such as Karachi or Lahore where it would be difficult if not impossible for him to be located.

10.  The Applicant never brought any appeal to the Torture Claim Appeal Board (“Board”) against that decision of the Director, for which the 14-day period required under Section 37ZS of the Immigration Ordinance had expired on 21 December 2015, and as a result his claim under those grounds were treated as finally determined by the Director.

11.  Meanwhile on 3 November 2016, the Director on his own initiative invited the Applicant to submit any 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”), and upon receiving and considering such additional facts from the Applicant, by a Notice of Further Decision dated 4 January 2017 the Director rejected the Applicant’s BOR 2 claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated including BOR 2 risk upon his return to Pakistan.

12.  On this occasion the Applicant did lodge an appeal to the Board against this Further Decision of the Director, with his notice of appeal filed on 27 January 2017, and for which he attended an oral hearing on 23 September 2019 before the Board during which he gave evidence in respect of his claim and answered questions put to him by the Adjudicator for the Board. On 27 December 2019 his appeal was dismissed by the Board upon finding that he had failed to establish his BOR 2 claim and that reasonable internal relocation would be available for him to move safely to other areas of Pakistan that his claim for non-refoulement protection failed under the applicable ground, and that the Further Decision of the Director was also confirmed.

13.  On 17 April 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the decision of the Director dated 7 December 2015 and of the Board dated 27 December 2019, and in his supporting affidavit of the same date he put forward various grounds for his intended challenge. 

14.  By then the Applicant was however out of time with his intended application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application 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.

15.  For the Applicant’s intended challenge against the Director’s decision dated 7 December 2015, which was the Director’s first decision regarding the Applicant’s claim under torture risk, BOR 3 risk and persecution risk, and which as noted above the Applicant never brought any appeal or petition to the Board, of which he was required to do first under Section 37ZR of the Immigration Ordinance before making any legal challenge by way of judicial review. As such and in the absence of any valid explanation from him as to why more than 4 years later that he now wishes to challenge that decision, and why he should be allowed to do so without first bringing an appeal to the Board, I do not find any legal basis for his intended application for judicial review against that decision of the Director.

16.  As for his intended challenge against the Board’s decision dated 27 December 2019, as the last day of the 3-month period for him to file his Form 86 fell on 27 March 2020, and hence the Applicant was late by about 3 weeks 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 AW v Director of Immigration [2016] 2 HKCA 393.

17.  In the Applicant’s case, a delay of 3 weeks cannot be regarded as insignificant, for which he did not provide any explanation in his summons or supporting affidavit, and as the record shows that the decision was sent on the same day to his then reported address without being returned through undelivered post, I do not find any good reason for his delay.  

18.  As for the merits, if any, of his intended application, the Applicant did in his supporting affidavit set out his various complaints against the Board’s decision, but upon careful scrutiny they all appear to be factual issues over what he had told the Adjudicator during his oral hearing before the Board and what appear to be his second attempt now to clarify or explain what he may have said about his claim during his oral hearing, instead of properly and clearly identifying any error of law or irrationality or procedural unfairness in his process before the Board or in the decision but which he has failed to do. As such I do not find any of his complaints reasonably arguable for his intended challenge.

19.  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.

20.  In the Applicant’s case, the Board found his claim vague and unsubstantiated in the extreme that he was not accepted as a credible witness and that no credence at all could be attached to his BOR 2 claim for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 29 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his 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 findings of the Board.   

21.  The fact is that it has been established by both the earlier decision of the Director and this decision of the Board 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 parts of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

22.  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 their consideration and assessment of the Applicant’s claim.

23.  Furthermore, the Applicant on 6 January 2021 wrote to request to withdraw his application as he wants to return to his home country.   

24.  In the premises, and as I am not satisfied for the reasons given 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 delay, and given his recent request to withdraw his application, I accordingly refuse to extend time and 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