JAVED QASIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1314/2019

[2024] HKCFI 344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1314 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.  The extension of time for the application for Judicial Review be refused; and

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

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 16 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision , which is 17 July 2018. His application was filed on 16 May 2019, which is more than 9 months late. This issue will be dealt with below.

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 38, is a Pakistani. He arrived in Hong Kong via the Lo Wu Control Point on 15 August 2011, but was refused permission to land. Upon such refusal, the applicant made a torture claim at the border, which was rejected on 18 May 2012. On 22 February 2013, the applicant made a further non-refoulement claim on all applicable grounds other than Torture risk[1]. The non-refoulement claim was made on the basis that, if refouled, the applicant would be harmed or even killed by people claiming to be Taliban members and the Pakistani Intelligence Agencies (“PIA”).

5.  According to the applicant, his family and a high ranked army officer named Colonel Amjad Saleem (“Colonel”) had a land dispute at around December 2010. On 5 January 2011, Colonel together with 4 to 5 men assaulted the applicant. He sustained injuries and was taken to hospital. He made a report to the police on the same day, but they refused to take any action. In June 2011, when his family started construction work on the disputed land, Colonel threatened the applicant over the phone to sell the disputed land to him, failing which he would kidnap or even kill the applicant. The applicant confirmed that the land dispute with Colonel was resolved in 2014.

6.  The applicant also claimed that he worked as a security guard in the US Embassy between March 2009 and March/April 2011. He received threats from people claiming to be Taliban members between late 2010 and February 2011 because he refused to disclose the schedule of his boss. The applicant did not report these threatening calls to his boss or the Pakistani authorities because he was scared to be regarded as involving in terrorist activities. The applicant resigned from his job at the US Embassy in March 2011 after an attempted abduction in January 2011. He told an officer about the threatening calls from Taliban members before leaving the job. The applicant moved elsewhere to stay with his grandparents for a month in July 2011 before coming to Hong Kong, during which he still received calls from Taliban members.

7.  The applicant claimed that he did not disclose the threats from Taliban members at an earlier stage of his claim because this was a secret issue and he was afraid that he would not be released from detention if he made the disclosure.

8.  Following his departure from Pakistan, the applicant was informed by his family members that PIA members were enquiring for his whereabouts as they suspected him for releasing the schedule of his boss to Taliban and involving in terrorist activities.

9.  The applicant was of the view that internal relocation within Pakistan not viable as he had no relatives elsewhere and he would also be easily located given the extensive network of Taliban and PIA. He also considered seeking protection from the authorities not possible as he was suspected of being involved in terrorist activities.

10.  Details of the applicant’s story can be found in paragraphs 8 to 81 of the Director’s Decision dated 29 May 2017 (“the Director’s Decision”).

The Director’s Decision

11.  Since the Director had rejected his torture claim, the Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found the absence or low intensity and frequency of ill-treatment from Taliban members is indicative of a small future risk of harm upon his return to Pakistan. The Director also found the seeking of his whereabouts from PIA members reasonable and necessary given his disclosure to an officer about the Taliban calls. Furthermore, the applicant’s behavior of not taking the first available opportunity to leave the country or at least move away from his hometown at the fist instance were inconsistent with persons who are genuinely in fear [92]-[108].

13.  In any event, the Director found that (i) state protection will be available to him upon his return [109]-[131]; (ii) internal relocation is viable [132]-[137] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [138]-[143] and Persecution risk [144]-[148].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board. On 23 February 2018, the Board conducted an oral hearing.

15.  Having considered the applicant’s evidence, the Board was of the view that the applicant was no longer of value to the Taliban after his resignation from the US embassy [38]-[43]. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Persecution risk [47]-[51], BOR 2 and BOR 3 risk [52]-[61] or Torture risk [62]-[66]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

16.  The applicant has filed Form 86 dated 16 May 2019 for leave to apply for judicial review of the Board’s Decision.

17.  The applicant attached the Board’s Decision to his affirmation in support of his application without raising any specific ground.

DISCUSSION

18.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

19.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

20.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

21.  Insofar as his fear of PIA is concerned, the Board found:

“37. In the end, the Appellant agreed that although he expected that the officers of the Pakistan Intelligence Agency might cause him some troubles by way of investigation if he was to be returned to Pakistan, they were not his main concern as far as his well-being was concerned. The Talibans were his main concern.”

22.  Insofar as the Talibans are concerned, the Board found:

“43. … I am not persuaded that a small group of Talibans, if they still existed after 7 years (from 2011 to 2018), remained still interested in the Appellant and keen to kill him who had no practical use to them even in 2011. I find as a general situation existing now that the Appellant had no well-founded fear of the Talibans in Pakistan.”

23.  The applicant has raised no valid reason to challenge the facts found by the Board.

24.  There is no reason that the Court should interfere with the Board’s finding of the facts. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

25.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his 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