KHAN IRFAN v.WILLIAM LAM, ADJUDICATOR OF NON-REFOULEMENT CLAIMS PETITION OFFICE AND OTHERS

HCAL 486/2018

[2019] HKCFI 813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 486 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.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board made on 8 November 2017 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 31-year-old national of Pakistan who entered Hong Kong illegally on 18 January 2014 and was arrested by police on 22 January 2014.  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 a man called Jamil who wanted to take over his business.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant used to run a motorbike repair workshop in Lahore, Pakistan where the business was good, and Jamil who was one of his regular customers and a wealthy person in his home district had shown an interest in taking over the business but was declined by the applicant.

3.  One evening in 2013 Jamil came to the workshop appearing drunk and demanded the applicant to get out of the shop as he wanted to take over his business.  When the applicant just ignored him Jamil then left without any further incident.

4.  However on the following day Jamil came to the shop again with several men and threatened the applicant with a pistol that he should hand over his business to him, and when the applicant refused, one of Jamil’s men hit him with a metal bar that caused him to bleed badly on the head, and before Jamil left he warned the applicant that next time when he returned and if the applicant was still there, his men would kill him.

5.  Afterwards the applicant was taken to the hospital for treatments.  After his discharge from the hospital some policemen came to investigate the incident, but the applicant refused to identify Jamil as the culprit for fear that it would put his family in danger, and the policemen therefore left without any further action.

6.  A few days after the applicant returned to work in his workshop, several of Jamil’s men arrived in a car and started shooting at his shop, and when one of the bullets hit a gas cylinder inside the shop it blew up and caused a fire, but during the chaos the applicant managed to escape unharmed and fled home.

7.  After the shooting incident the applicant did not report the matter to the police as he believed they were corrupt and would not help him, but as he was advised by his mother to leave Pakistan for his own safety, he therefore departed on 16 August 2013 for China, and from there he sneaked into Hong Kong on 18 January 2014 and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 4 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 5 May 2016 the Director of Immigration (“the 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 (“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”).

9.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from Jamil and his men to the applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that Jamil just wanted to take over his business and after the fire caused to his work shop and that the applicant was no longer running the business that there would be no reason for Jamil to still be interested in him after all these years, that in any event 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 (“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 work experience to move to other part of Pakistan away from his home district in large cities such as Karachi or Islamabad where it would be difficult if not impossible for Jamil or his men to locate him.

10.  By a Notice of Further Decision dated 26 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation 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”).

11.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 13 May 2016, but he failed to attend the oral hearing scheduled on 20 September 2017, and when his explanation for his absence was not acceptable to the adjudicator and when he subsequently also failed to answer the list of questions sent to him, the Board proceeded to deal with his appeal in his absence on papers.  On 8 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found in the absence of any oral evidence from the applicant and his failure to answer the list of questions sent to him that important questions over the credibility and reliability of his account had remained unanswered or unexplained that his story was too vague to carry evidential weight, but in any event that his dispute with Jamil was a private matter without any official involvement that state or police protection would be available to him, and that it was not accepted that after all these years that Jamil would still be interested in locating him all over Pakistan that there are many places other than his home district that he can safely relocate without undue hardship, and concluded that his claim failed on all applicable grounds.     

13.  On 26 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forth the following grounds for his intended challenge:

(1)  that the Director failed to take into account that inaction of government officials can effectively hold the state liable for failing to provide reasonable protection to its citizens against risk of torture in the consideration of his claim;

(2)  that the Director failed to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)  that the Director failed to take into account the corruption and incompetency of the police in Pakistan and would not be able to provide proper protection to its citizens in the consideration of his claim; and

(4)  that the adjudicator failed to make sufficient enquiry before concluding that the applicant had failed to satisfy the element of ill-treatment without advising him to obtain medical reports from the Pakistani authorities in his assessment of the seriousness of the injuries suffered by him.  

14.  The applicant was however by then late with his Form, 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.

15.  As the last day of the there-month period for the applicant to file his Form 86 fell on 8 February 2018, he was therefore more than six weeks 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.

16.  In the applicant’s case, a delay of more than six weeks cannot be said to be insubstantial, for which he explained at the hearing of his application before me that because he did not have money to employ a lawyer to prepare the application for him and hence he had to borrow money from his family back home in Pakistan which took a long time for his family to come up with the money to help him which accounted for the delay.  However, in the absence of any supporting documentary evidence and the fact that he had had more than four months to do so, I do not accept that he has given any good reason for his delay.     

17.  As for the merits of his intended application by reference to his proposed grounds, they are however just some broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for medical evaluations in his case.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of any legal error or procedural unfairness being clearly and properly identified by the applicant, I do not find any basis or merits in any of these grounds or that they are reasonably arguable for his intended challenge.

18.  The fact is that it has been established by both the Director and the Board 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.

19.  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.

20.  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 reasons for his delay, I refuse to extend time and accordingly his application is 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