MEHMOOD TAHIR v. TORTURE CLAIMS APPEAL BOARD

HCAL 236/2021

[2025] HKCFI 6110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 236 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 the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 58-year-old national of Pakistan who entered Hong Kong illegally on 29 June 2011 and was arrested by police on 21 July 2011. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his cousin over their land dispute within the family in his home village, and after his torture claim was rejected he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mohallah, Milad Nagar, Tehsil Gujar Khan, District Rawalpindi, Pakistan. After leaving school he assisted in his father’s vegetable wholesale business in his home district which he subsequently took over after the passing of his father.

3.  In 2006 his cousin Javed who owned some farmland in the same village wanted to acquire some land from the Applicant’s family to which his family agreed, but later when Javed wanted more land, and when the Applicant’s family refused, Javed became furious and made threats against the Applicant and his family.

4.  Shortly thereafter Javed met with the Applicant for discussion about the dispute, during which Javed attacked the Applicant by striking him in the head with a glass bottle that the Applicant fainted and was subsequently taken to the hospital for medical treatments.

5.  After the assault the Applicant and his family became concerned for their safety, and when the threats from Javed persisted, the Applicant and his family decided to leave the village to move elsewhere, with the Applicant moving to Sialkot and then Karachi, and on 25 June 2011 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 15 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 12 December 2018, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

7.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his cousin Javed and followers 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 Javed to seriously harm or kill him other than to press his family to yield to his demand, that in any event it was a private land dispute between the Applicant’s family and Javed only 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 205 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 Lahore or Islamabad where it would be difficult if not impossible for Javed to locate him.

8.  On 24 December 2018, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it could be heard the Applicant by letters dated 17 and 20 of February 2020 and 2 March 2020 requested to withdraw his appeal, and upon being satisfied that his withdrawal request was freely sought, that he understood the consequences of the withdrawal, and that there was good reason for his proposed withdrawal in that he considered it safe to return to Pakistan, the Board by a letter dated 25 March 2020 acceded to the Applicant’s request and directed that his appeal be withdrawn and dismissed, and confirmed the Director’s decision as having finally determined and disposed of the Applicant’s non-refoulement claim.

9.  However, some 11 months later on 26 February 2021 the Applicant filed a Form 86 for leave to apply for judicial review of a decision of the Board dated 12 December 2018 but which is in fact the decision of the Director, and no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the Director’s decision but without any explanation as to why a change of his mind to challenge that decision after having withdrawn his appeal to the Board some 11 months ago upon confirming that it was safe for him to return to his home country.

10.  By then the Applicant was clearly also 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 is good reason to extend the period within which the application shall be made.

11.  As the last day of the three-month period for him to file his Form 86 as regard the Board’s decision fell on 25 June 2020, let alone the much earlier Director’s decision, the Applicant was therefore at least 7 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.

12.  In the Applicant’s case, a delay of at least 7 months must be considered as very substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 25 March 2020 to him at his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

13.  As for the merits, if any, of his intended application, as noted above that the Applicant has failed to put forward any proper ground for his intended challenge of whether the decision of the Director or the Board. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any merits in his intended application against either decisions.

14.  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.

15.  In the Applicant’s case, the Board acceded to his request to withdraw his appeal against the Director’s decision upon being satisfied that his request was freely sought, that he understood the consequences of the withdrawal, and that he had good reason to do so in that it was safe for him to return to his home country, and accordingly the Board withdrew and dismissed his appeal as finally determined and disposed of by confirming the Director’s decision. As such, and in the absence of any explanation from the Applicant for his change of mind some 11 months later or of any error of law or irrationality or procedural unfairness on the part of 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 decision of the Board.

16.  As for his intended challenge of the Director’s decision, similarly in the absence of any error of law or procedural unfairness in his screening process before the Director or in the decision being properly identified by the Applicant, and that on the factual basis of even his own case that that it was a private land dispute with his cousin within the family only without any official involvement that state protection would be available to the Applicant upon his return to Pakistan, I do not find any reasonably arguable basis to challenge the Director’s decision either, and as it has also been correctly established by the Director that the risk of harm in the Applicant’s 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.  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 to allow his request to withdraw his appeal.

18.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of either decisions of the Director or the Board, and in the absence of any good reason for his serious 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