MOHAMMAD ZAHID v. TORTURE CLAIMS APPEAL BOARD

HCAL 692/2020

[2024] HKCFI 425

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 692 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 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 15 March 2017 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of Pakistan who entered Hong Kong illegally on 6 February 2011 and was arrested by police on 15 February 2011, and for which he was subsequently convicted and sentenced to prison for 15 months. After he was discharged from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by some of his fellow villagers who were Deobandi Muslims over his conversion to a Barelvis Muslim whom they despised. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Deobandi Muslim in Village Khanpur, Dhonat, Lodhran, Multan, Punjab, Pakistan. After leaving school he worked as a driver in his home district.

3.  In January 2009 the Applicant converted from Deobandi Muslim into a Barelvis Muslim against his family’s wishes, and after he refused to heed his brothers to reconvert back to Deobandi Muslim, he was subsequently threatened and attacked by some of the Deobandi Muslim villagers who would just beat him on the streets in the village whenever they ran into him.

4.  After several severe beatings when he suffered cuts and bruises all over his body, and when his brothers had also turned against him, the Applicant in May 2010 fled from his home village to Islamabad and departed Pakistan 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 Non-refoulement Claim Form (“NCF”) on 24 June 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 31 August 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of him being harmed or killed by those Deobandi Muslim villagers upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him, that in any event it was a private religious dispute between them 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 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 areas of the country away from his home district in large cities such as Karachi where it would be difficult if not impossible for those local Deobandi Muslim villagers to locate him.

7.  On 11 September 2015 he Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 11 May 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 15 March 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board accepted the Applicant’s claim of threats from certain local Deobandi Muslim villagers in his home village over his conversion into a Barelvis Muslim but found in the absence of any state or official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.  Meanwhile on 16 March 2017 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 and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 3 April 2017 also 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 including right to life under BOR 2 ground being violated upon his return to Pakistan.

10.  On 17 April 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the earlier decision of the Board of 15 March 2017, but no proper ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just asserted that the Board erred in dismissing his appeal without any valid reason by ruling that he failed to establish a case for non-refoulement protection but without providing any details or particulars or elaboration as to how it was so. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

11.  By then the Applicant was also 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 day when grounds for the application first arose unless the court considers that there si good reason to extend the period within which the application shall be made.

12.  As the last day of the three-month period for him to file his Form 86 fell on 15 June 2017, the Applicant was henceforth some 2 years and 10 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.

13.  In the Applicant’s case, a delay of 2 years and 10 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 15 March 2017 to his then reported address without being returned through undelivered post, I am unable to see any good reason or justification for his such serious delay.

14.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, 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 merits in his intended application either.

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 fact is that it has been correctly established by both the Director and the Board in their decisions that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part 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.

17.  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.

18.  Moreover, the Applicant recently on 16 November 2023 filed an affirmation requesting to withdraw his application as his problems in his home country have been resolved and that it is now safe for him to return to Pakistan.

19.  In the premises, as I am for the given reasons 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 it is safe for him to return to his home country, 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