AZHAR HUSSAIN v. WESLEY WONG, ADJUDICATOR FOR PETITION TEAM OF SECURITY BUREAU

HCAL 856/2018

[2020] HKCFI 2146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 856 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Director of Immigration dated 8 December 2010 and the decision of the Adjudicator for Petition Team of Security Bureau dated
21 January 2011 refused; and

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

Observations for the Applicant:

1.   The Applicant is a 48-year-old national of Pakistan who last arrived in Hong Kong illegally in 2007 and was arrested for illegal remaining on 2 October 2009.  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 certain members of his local community over some family disputes.   He was subsequently released on recognizance pending the determination of his claim.

2.   The Applicant was born and raised in Mohalla Kanyawala, Malikwal, Mandi Bahauddin, Punjab. Pakistan.  After leaving school he married his wife and raised a family with his children in his home village.

3.  In 1980 the people in his home village led by a wealthy villager Raja accused his parents of living together without being married to each other, and the local mosque therefore announced that his family should be rejected for acting in a manner contrary to Islamic belief, which then led to various court cases filed by the Applicant’s parents against Raja, followed by threats and violence inflicted by Raja in retaliation against the Applicant’s family which eventually caused the Applicant and his family to leave their home town by 1996 to move to Sargodha where they had stayed without incidents.

4.  However, in 2002 when the Applicant moved his family back to their ancestor house in Mohalla Kanyawala, he and his family again experienced rejection and discrimination from Raja, and so the Applicant decided to leave Pakistan, which he last did in 2006 for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest he raised his torture claim, for which he completed a Torture Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Determination dated 8 December 2010 the Director of Immigration (“the Director”) rejected the Applicant’s torture claim upon taking into account of all the relevant circumstances of his case and found the credibility of the claim doubtful in respect of his asserted events occurred in Pakistan, that in any event that the risk of harm from Raja or his men upon his return to Pakistan was assessed as low due to the low intensity and frequency of past ill-treatment from them, that Raja and his men were against the relationship between his parents and not directed or targeted against the Applicant, that in the absence of 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 show that reasonable internal relocation alternatives are available in Pakistan 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 such places such as Sargodha where he and his family had stayed before without incidents and where his wife and children now still lived without problems and where it would be difficult if not impossible for Raja or his men to locate him.

6.  On 21 December 2010 the Applicant lodged an appeal by way of petition to the Petition Team of Security Bureau against the Director’s decision, and for which the Adjudicator did not conduct any oral hearing and dealt with the appeal in the absence of the Applicant and on papers. On 21 January 2011 the Applicant’s appeal was dismissed by the Adjudicator.

7.  In its decision the Adjudicator found no real intention on the part of Raja to seriously harm or kill the Applicant, that it was not accepted that he would not be entitled to state/police protection without any official involvement in the dispute between Raja and his family, and that given the fact that his family had lived in Sargodha without any problems or incidents that it would be safe for him to join his family and live in Sargodha that he failed to establish his torture claim which was dismissed by the Adjudicator.     

8.  On 17 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decision of the Director dated 8 December 2010 and of the Adjudicator dated 21 January 2011, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life is still in danger in his home country but without putting forward any proper or valid grounds for his intended challenge. Nor did he request any oral hearing for his application.  As such I do not find any reasonably arguable basis for his intended challenge. 

9.  By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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. 

10.  As the last day of the three-month period for the Applicant to file his Form 86 fell on 21 April 2011, he was therefore more than 7 years 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: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

11.  In the Applicant’s case, a delay of more than 7 years must be considered as very substantial and excessive, for which he did not provide any explanation, and as the record shows that the Adjudicator’s decision was sent to the Applicant at his last reported address and had never been returned through undelivered mail, I am unable to see any good or valid reason for his such serious delay.

12.  As for the merits of his intended application, as noted above the Applicant also failed to put forward any valid or proper ground for his intended application, and in the absence of any error of law or procedural unfairness in his process before the Adjudicator or in his decision being clearly and properly identified by the Applicant, I am unable to find any reasonably arguable basis for his intended challenge.  

13.  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 Adjudicator where the evaluation of the risk of harm is primarily a matter for the Director and the Adjudicator 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.

14.  Furthermore, the fact that it has been established by both the Director and the Adjudicator in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  In the premises and having considered the decisions of both the Director and the Adjudicator 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.

16.  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 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