SHAH MANZOOR HUSSAIN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2355/2018

[2022] HKCFI 876

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2355 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 oral submissions by the Applicant 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 29 February 2016 refused; and

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

Observations for the Applicant:

1.   The Applicant is a 45-year-old national of Pakistan who last entered Hong Kong illegally on 30 November 2007 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the family of his cousin for refusing to marry her as arranged by the two families. He was subsequently released on recognizance pending the determination of his claim.

2.   The Applicant was born and raised in Gorsian, Po Jattan, District Mirpur, Azad Kashmir, Pakistan where he worked as a tailor after leaving school and continued to reside with his parents in his home village.

3.  In 2003 his family made arrangement for him to marry his cousin Tahira as agreed with her family, but the Applicant refused to marry Tahira, and instead married another girl, and as a result Tahira’s family were furious at him for losing face by his action, and on one occasion in early 2006 the 3 brothers of Tahira angrily confronted him and then beat him and stabbed him with a knife that he was later rushed to the hospital for treatment.

4.  After discharge from the hospital, the Applicant became fearful for his life and departed Pakistan in May 2006 for China, and from there he later sneaked into Hong Kong where he was subsequently arrested by police and was repatriated back to Pakistan in December 2006. 

5.  Upon returning to his home village, the Applicant still remained fearful for his life, and after one occasion in January 2007 when he was attacked again by one of Tahira’s brothers with a wooden stick that he suffered cuts and bruises which required medical treatment, the Applicant on 23 November 2007 again departed Pakistan for China, and from there he again 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 12 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 30 December 2014 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”).

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 Tahira’s family upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that his problem with Tahira’s family was a private family dispute 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 part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for Tahira’s family to locate him.

8.  On 9 January 2015 the 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 22 June 2015 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 29 February 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found serious inconsistencies and discrepancies in the Applicant’s evidence that it did not find him to be a credible witness and doubted his claims of past assaults by his cousin’s brothers or of fear of threats or harm from his cousin’s family over what was if true essentially a private family dispute without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds. 

10.  Meanwhile on 11 January 2017 the Director on his own initiative invited the Applicant to submit 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 in the absence of any response from him, the Director by a Notice of Further Decision dated 2 February 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 right under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

11.  The Applicant never brought any appeal to the Board against the further decision of the Director, but on 25 October 2018 he filed a Form 86 for leave to apply for judicial review instead of both the first decision of the Director of 30 December 2014 and the decision of the Board of 29 February 2016, and put forth the following grounds for his intended challenge:

(1)   that the Director and the Board reached their decisions wrongly in assessing his non-refoulement claim in that they were not reasonable or fair as required by the Wednesbury test as his right to life is protected by the criminal law and that he must be protected from extra-judicial killings which he may face if deported to his home country;

(2)   that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3)   that the Director failed to appreciate or give weight or importance to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(4)   that the Director failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies and those high up in the political circles that the state should be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5)   that the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but which the Director failed to consider or give enough weight to such evidence and instead ruled otherwise which is a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void; and

(6)   that the Director failed to recognize that corruptions and incompetency of the administration in the Applicant’s home country is still a very serious problem which various human rights organizations have compiled reports which stated testament to the Applicant’s assertions which is a failure to apply standards of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law.  

12.  By then the Applicant was obviously 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. 

13.  As the first decision of the Director had already been superseded by the Applicant’s subsequent appeal to the Board, and which decision was to represent the final decision at the end of the screening process of the Applicant’s non-refoulement claim, hence the Director’s decision is no longer susceptible to judicial review: see Re Moshsin Ali [2018] HKCA 549.

14.  Accordingly, I shall treat this application of the Applicant as his intended challenge of the Board’s decision of 29 February 2016, in which case the last day for him to file his Form 86 for leave to apply for judicial review fell on 29 May 2016, and hence the Applicant was more than 2 years late with his application, and in considering whether to extend time for him to do so, 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.  

15.  In the Applicant’s case, a delay of more than 2 years must be considered as extremely substantial and inordinate, for which he explained at the hearing of his application that he had at that time changed his address without informing the relevant authorities, and hence he never received the Board’s decision in the mail to his previous address, and that it was later when he reported on his recognizance that he was informed by his immigration officer of the decision, but by then he was already out of time with his application.

16.  The record shows that the Board’s decision was sent on 29 February 2016 to the Applicant’s last reported address without being returned through undelivered post, and if indeed the Applicant changed his address at that time and hence did not receive the decision in the mail, a bare assertion unsupported by any documentary evidence, he had only himself to blame as it was clearly his duty to inform any change of his residential and/or correspondence address to the relevant authorities. In the circumstances I am not satisfied that he has any good reason for his such serious delay.    

17.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant as listed above are however all just broad and vague assertions containing a few key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Adjudicator had erred in the decision, or why would state acquiescence be relevant to his case which was essentially a private family dispute without any official involvement, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Board fail to apply high standards of fairness in assessing his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while his complaint that he was tortured at the behest of the state law enforcement agencies and politicians is clearly never his case whether before the Director or the Board. As such I do not find any of them reasonably arguable for his intended challenge.

18.  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.

19.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 39 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 finding of the Board.  

20.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

21.  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 their consideration and assessment of the Applicant’s claim, nor for that matter would there be any prospect of success had the Applicant intended to challenge the further decision of the Director regarding his BOR 2 Claim, of which he never brought any appeal to the Board, and that even on the basis of his own case simply did not engage the BOR 2 ground, never mind the fact that he would still have been also seriously out of time by some 29 months, and also without any valid reason for such serious delay.

22.  For all the reasons given, 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 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