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HCAL 1577/2019
[2021] HKCFI 2905
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1577 of 2019
BETWEEN
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Waleed Muhammad |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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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:
Order by Deputy High Court Judge P. Li:
1. Application for leave to apply for Judicial Review be reinstated.;
2. Extension of time for application for leave to apply for Judicial Review be refused; and
3. Application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The applicant was from Pakistan. He was arrested by the police on 7/2/2012 for illegally remaining in Hong Kong. He claimed to the Immigration Department that he had sneaked into Hong Kong by boat from China on 23/12/2011[1]. He filed the present non-refoulement claim on 9/2/2012.
2. His claim was rejected by the Director on 21/9/2015 [2] and 16/1/2017 [3]. His appeal was dismissed by the TCAB on 25/4/2018.
3. He filed a leave application for judicial review on 10/6/2019. He was 10½ months out of time. Meanwhile, he applied to withdraw the leave application on 22/1/2021. He stated in his supporting affirmation that his problem had been solved. His physical condition was bad. He wanted to return to Pakistan. This court granted him leave for withdrawal on 5/2/2021.
4. On 15/7/2021, he applied to this court for re-instatement of the leave application. He stated that he did not want to go back as his life was in danger.
5. This court allowed the applicant to re-instate his leave application and considered his leave application.
Background
6. The applicant was born on 10 June 1990. He lived at Sialkot, Punjab, Pakistan. He studied up to grade 8. He was a factory worker for some years. He was single and a Muslim. He supported the PML(N) [4] since 2008. He hated the PPP [5]. His family was in Pakistan. They did not support any political party.[6]
7. In 2011, some PPP members asked him to join their party. They threatened to kill him if he refused. He knew those people but did not want to tell the Director their names. Later that year, some PPP members threatened his father to surrender the family land. They threatened to kill his father. He was not present during this incident. They did not succeed and left. He reported to the police who took a statement from him.
8. In November 2011, about 10 PPP members assaulted him at his home. They were armed with knives and pistols. He managed to escape from the backdoor. He travelled for 2-3 hours and hid at the home of his friend (“A”) who was also a supporter of PML(N). He was injured all over his body. He had treatment including stitches and some medicine at a place. He refused to tell the Director the name of the place. He recovered in about a month. He did not report to the police. [7]
9. Subsequently, he met a friend “B” who told him about the protection scheme in Hong Kong. He then decided to come to Hong Kong. [8]
10. On 15/12/2011, he left Pakistan using his passport. He stayed in China for 7 days before coming to Hong Kong. He just hid himself in Hong Kong. He had no idea where to apply for protection.
11. He did not think PML(N) leaders would protect him as he was just an ordinary person. Despite PML(N) was the ruling party, PPP was still active. He could not relocate to other places as PPP people were everywhere. They could locate him. He had already lost contact with “A”.
12. He did not think the police would investigate as they would not help poor people. He did not know any organization which could assist him.
13. He did not contact his family since 2011 but he knew they were safe. The PPP did not harm them.
The Decision of the Director
14. The Director found that the risk of harm was low. The reasons were as follows:[9]
i. The applicant presented two inconsistent versions of background. He became a supporter of PML(N) in 2008. He also said he became a supporter of PML in 2010. In either version, there was no trouble from the PPP until 2011.
ii. The applicant was threatened and attacked by the PPP members in 2011. He sustained some injuries but they were not up to ‘a minimum level of severity’.
iii. The PPP people did not use their weapons to attack him during the incident in November 2011. They did not harm his family. There was no evidence that they were still after him after he left his village. All these indicated that the PPP people had no interest in him.
iv. The applicant could obtain his passport and left Pakistan without any problem. He was not targeted by the government. The influence of PPP was localized.
v. The Director had considered various COI. The Director accepted that in Pakistan, there was corruption, ineffective police investigation and subject to political manipulation. On the other hand, the Director noted some ongoing reforms with positive results. The DPSPCC [10] were established to tackle abuse of police power. The NAB [11] was mandated to eliminate corruption. The Ombudsman was responsible for investigating abuse of power and maladministration. In all, the Director was satisfied that reasonable State protection was available.
vi. The law in Pakistan allowed internal relocation. Karachi was a possible option. Pakistan was a large country. It would be difficult for the PPP people to locate him. The applicant was young and with working experience in a factory. It was not unreasonable for him to relocate.
15. Given the above, the Director dismissed his claim on all grounds.[12]
The Decision of TCAB
16. The applicant attended a TCAB hearing on 25/1/2017. The adjudicator rejected the appeal on 25/4/2018.
17. The adjudicator pointed that the applicant gave inconsistent evidence in his NCF and during the screening interview. He concluded that the applicant was unreliable. He could have dismissed the claim on credibility alone.[13]
18. The adjudicator nevertheless considered the information recorded on the NCF. He dismissed the appeal on the following grounds:
(a) There was no violence during the first incident when the PPP people demanded the applicant’s father to surrender the family land. The applicant was not there. During the 2nd incident, despite the PPP people were armed, they did not assault him with their weapons. These showed that there was no intention to kill the applicant.
(b) Before the applicant left Pakistan, he stayed with his friend “A” for over a month. There was no evidence that the PPP people had continued to harass his family or tried to track him down.
(c) According to his friend “A”, he heard that the PPP people continued to look for the applicant at the home village only. There was no evidence that they tried to locate the applicant elsewhere. The influence of those PPP members were localized. It was unlikely that they would employ resources to locate the applicant. He would be safe if he relocated to other places.
(d) The PPP people also targeted other PML(N) supporters who campaigned for that party. Six years had passed, there was no reason for the PPP people to continue targeting the applicant. The risk of future harm would be low if the applicant relocated to other places.
(e) The adjudicator accepted that there was reasonable State protection in Pakistan. He also accepted that there were reasonable options for relocation.
(f) There was no evidence that any public officer was involved. It was a private dispute without any involvement of the government. There was no instigation, consent or acquiescence by any public official.
(g) There was no ill-treatment amounted to ‘a minimum level of severity’. The evidence showed that the harm was unlikely to materialize. There was no real risk of harm.
(h) The dispute was private in nature. There was reasonable State protection and relocation options, there was no persecution risk. [14]
19. The adjudicator dismissed the appeal on 25/4/2018.
Judicial Review
20. The applicant filed the leave application for judicial review on 10/6/2019. There was no specific complaint in his affirmation. He pointed out that his life was still in danger.
21. As mentioned above, the leave application was out of time for about 10½ months. He should have first sought an extension of time.
22. In considering whether there is good reason for the extension of time, I should consider the length of the delay, the reason for the delay and the merits of the leave application. [15]
23. The applicant did not apply for extension of time. He did not explain the reasons for the delay.
24. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.
25. The adjudicator had analysed the evidence. The applicant was inconsistent with no satisfactory explanation. I agree with the conclusion of the adjudicator. The applicant was not truthful.
26. I agree with the TCAB decision. It is reasonable. There is no error in law or procedure either.
Conclusion
27. The applicant did not apply for leave within 3 months of the TCAB decision. There was undue delay. He did not explain. The intended judicial review is not reasonably arguable. There is no reasonable prospect of success. There is no good reason to extend the time for the leave application. I refuse leave for the judicial review.
Dated the 29th day of September 2021.
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(Mike Mak) |
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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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)). |
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Sent to the Applicant
on 29 September 2021
Waleed Muhammad
Applicant’s ref. no:
Nil. |
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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 29 September 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2346/15/10/15/P647
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 678/15 &
RBCZ 9001482/16
(formerly RBCZ 146/12)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] He claimed that he left Pakistan on 15/12/2011. He arrived at China on 16/12/2011.
[2] BOR 3, Torture risk and Persecution risk.
[3] BOR 2.
[4] Pakistan Muslim League (N).
[5] Pakistan Peoples Party.
[6] In the screening interview on 27/7/2015, he stated that he only supported the PML in 2010, not the PML(N). He denied the content in the NCF. However, in the screening interview on 1/9/2015, he stated that he supported the PML(N) since 2008. He denied what he said in the screening interview on 27/7/2015. See Decision of the Director dated 21/9/2015, §§6.3—6.4. See also his NCF dated 27/5/2015, answer to Q35, §2.
[7] In the screening interview on 1/9/2015, he initially said “A” lived in the same village and knew from others that the PPP were looking for him. Later, he changed his statement that “A” did not live in the same village. It was his other friend who informed him by phone. See Decision of the Director dated 21/9/2015, §§6.13.
[8] In the screening interview on 1/9/2015, he denied this version recorded in his NCF. He said “B” was a friend of “A”. See Decision of the Director dated 21/9/2015, §§6.15. See also his NCF dated 27/5/2015, answer to Q35, §10.
[9] Decision of the Director dated 21/9/2015, §§13-22.
[10] District Public Safety and Police Complaints Commission.
[11] National Accountability Bureau.
[12] Decision of the Director dated 21/9/2015 and 16/1/2017.
[13] See footnotes 6—8. See also Decision of the TCAB dated 25/4/2018, §§17-27.
[14] Decision of the TCAB dated 25/4/2018, §§28-61.
[15] [2020] HKCFA 22, para 37.
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