WAHEED AHMAD v. DIRECTOR OF IMMIGRATION

HCAL 43/2018

[2018] HKCFI 2803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 43 of 2018

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 the Applicant being absent in open court;

1.   an extension of time for the application for leave to apply for judicial review against the decision of Director of Immigration made on 20 December 2016 be refused; and

2.   leave to apply for judicial review dismissed.

It is further directed that:

3.   if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he/she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.   when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.   the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.   if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.   liberty to apply.

Observations for the Applicant:

1.  The applicant is a 47-year-old national of Pakistan who entered Hong Kong illegally on 2 April 2008 and was arrested by police on 4 April 2008.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Pakistan he would be discriminated, harmed or killed by the Shia population as he is of the Sunni population and/or pursued by the police over certain charge against him. He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Sialkot City, Pakistan to a family of Sunni Muslim. After leaving school he worked as an electrician, got married with two children, and joined the Sunni Tehreet organization promoting and organizing religious activities for the local Sunni population from which arose frequent conflicts with the Shia Muslims in the area.

3.  In December 2006 during one of the escalated conflicts when a mass fight broke out between the two populations in Sialkot that some people were killed with many injured including the applicant when he suffered bruises all over his body before managing to escape from the scene.

4.  Several months later when he heard that some of his fellow Sunnis had been arrested by the police over that incident, and that the Shias had filed First Information Report (“FIR”) with the local police against him and a fellow Sunni Muslim for causing the death of two of their people during the fight, the applicant became fearful that he would be arrested and ill- treated by the police as a result, and therefore fled to Karachi where he took shelter at a friend’s place for a year before returning to Sialkot when he was advised to leave Pakistan for his own safety, and so he departed on 6 February 2008 for China, and from there he sneaked into Hong Kong and subsequently raised his torture claim with the Immigration Department.

5.  Whilst on recognizance pending determination of his claim, the applicant was arrested by police on 9 July 2008 for working without permission and was subsequently convicted and sentenced to 14 months in prison.  Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 August 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

6.  By a Notice of Decision dated 20 December 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) 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 the Shia Muslims or the Pakistani police upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from either of them, that there is no evidence that he had been specifically targeted by the Shia people in that mass fight between the two populations in 2006, that in any event it is most unlikely that they would still have any adverse interest in him after more than 12 years since that incident, that in the absence of any official involvement that state protection would be available to the applicant if resorted to, that reliable and objective Country of Origin Information show that Shia Muslims were in fact in the minority in Pakistan while the applicant’s Sunni Muslims were the majority, that there is no evidence that the applicant was being pursued by the Pakistani police given the fact that he was able to leave the country without any difficulty, and that reasonable internal relocation alternatives are available in Pakistan with a large population of 201 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 work experience to move to other areas away from his home district such as Islamabad or Karachi with large population of Sunni Muslims and where he had stayed before without any incidents.

8.  On 28 December 2016 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but before his appeal was being processed the applicant on 3 February 2017 applied to the Board to withdraw his appeal when he stated as follows:

“ I Waheed Ahmad would like to withdraw my appeal/petition because I am safe to return my country Pakistan.”

9.  On 17 February 2017 the Board by written notice to the applicant confirmed that his request had been accepted, that his appeal/petition was accordingly dismissed, that the Director’s decision was confirmed, and that no further action would be taken by the Board in respect of his appeal.

10.  However, some ten months later on 18 December 2017 the applicant wrote to the Board to say that his life was still in danger, that his opponent party was neither willing to reach any agreement with his family nor to take back their FIR from the police, and hence his life would still be in danger, and asked that he be allowed to remain in Hong Kong.

11.  On 29 December 2017 the Board received another letter from the applicant with the same claim as before and requested that he be allowed to proceed with his appeal to the Board against the Director’s decision.

12.  On 31 January 2018 the Board replied to refuse the applicant’s request on the basis that since his appeal had already been dismissed, the Board was therefore functus officio with no power to deal with his appeal/petition any further once it has properly been disposed, as it was so held in Hussain Tasawar v Betty Kwan (Adjudicator) [2017] 2 HKLRD 567.

13.  Before even receiving that reply from the Board and perhaps sensing the same outcome, on 9 January 2018 the applicant filed his Form 86 for leave to apply instead for judicial review of the Director’s decision, and in it he put forward the following grounds for his intended challenge:

(1)  that the Director erred by failing to maintain high standard of fairness in not holding an oral hearing to allow the applicant to put forward his case;

(2)  that the Director failed to maintain the minimum standard of procedural fairness in his decision-making process; and

(3)  that the Director failed to inform him that he could complain.

14.  In his Form 86 the applicant also requested an oral hearing for his application, but he did not appear at the scheduled hearing on 7 September 2018, for which he on 12 September 2018 wrote to explain that he was not aware of the hearing until he was contacted by the Court’s clerk by phone later on the morning of the hearing because he did not receive any letter from the Court informing him of the scheduled hearing.

15.  I note indeed that the two notices of hearing, one by ordinary post and one by registered post, issued by the Court to the applicant on 2 August 2018 informing him of the scheduled oral hearing for his application have in fact both been returned.  However, as both were sent to his same last known address as the one given by the applicant in his Form 86 as well as in all his earlier correspondences with the Board and subsequently with the Court as recent as the one dated 12 September 2018 when he claimed to have not received any notice of hearing, which therefore appears to me extremely odd or unlikely that neither was able to reach him, but a close examination of the envelope of the one sent by registered post perhaps reveals the true picture as it was marked by the Post Office as “Unclaimed”, which indicates that it was not claimed by the applicant, which if true then I fail to see why precious time and resources of the Court should be wasted by re-scheduling another oral hearing for the applicant, a decision further reinforced for the following reasons.     

16.  By filing his Form 86 for judicial review of the Director’s decision means of course that the applicant was way 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 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.

17.  As the Director’s decision was made on 20 December 2016, the last date for the applicant to make his application for leave to apply for judicial review fell on 20 March 2017, hence when he filed his Form 86 on 9 January 2018 he was two weeks short of being ten months late which is clearly a very significant delay, for which he did give an explanation in his Form in paragraph 5 as follows:

“ The Applicant crave leave for extension of time to seek leave to apply judicial review as the Applicant had previously appealed with Torture Claims Appeal Board and he withdraw that appeal as he intended to go back to Pakistan but the situation in his country of origin deteriorated and tried to re-open his appeal but was not allowed to do so. Therefore, he now seeks leave to pursue judicial review in lieu of the appeal with the Torture Claims Appeal Board.”

18.  That has already noted above cannot be accepted as a valid reason for his delay, but whether there is good reason to extend time I am required to consider other relevant matters, of which the most significant one is clearly the merits, if any, of his intended challenge: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & anor CACV 63/2015.   

19.  However, those grounds put forward by the applicant for his application are all just broad and vague assertions without any particulars or specifics or elaborations as to how they applied to his case, or in what way did the Director fail to apply high standard of fairness or to maintain the minimum standard of procedural fairness.  In the absence of any legal error or procedural unfairness being identified by the applicant in the Director’s decision, there is simply no merit or basis in any of the applicant’s complaints.

20.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

21.  Further, the fact that it has been established by the Director in the decision 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 part of Pakistan where there are large Sunni populations, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

22.  In the premises and having proceeded to consider 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.  For these reasons I am 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 to extend time for his application, it is accordingly hereby dismissed.

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