HASSAN SUBHANI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2058/2019

[2025] HKCFI 213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2058 OF 2019

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Pakistan who entered Hong Kong illegally on 10 December 2007 and was arrested by police on 21 December 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Peoples Party (“PPP”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Makwal, Tehsil Kharian, District Gujrat, Punjab, Pakistan. After leaving school he worked as a farmer in his home district, and supported PML(N) regularly attended their local meetings and activities without holding official post in the party.

3.  In 2006 some local PPP supporters approached the Applicant to invite him to join PPP, but when he refused, they first threatened him, then assaulted him with wooden sticks that fractured his left arm, and then made false charges against him to the police.

4.  To avoid their threats and harassments, the Applicant fled from his home district to various cities such as Karachi and Islamabad, and on 10 December 2007 he departed Pakistan for China, and from there he later 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 Supplementary Claim Form (“SCF”) on 31 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 30 December 2015 and a Notice of Further Decision dated 27 February 2017 the Director of Immigration (“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 or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated 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”).

6.  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 those local PPP supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or any political reason for them to do so given that he was just an ordinary PML(N) supporter without holding any official post in the party, nor is it accepted that they would still have any adverse interest in him after all these years since he left the country, 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 working experience to move to other areas of the country away from his home district in large cities such as Sialkot where it would be difficult if not impossible for anyone to locate him.

7.  On 13 January 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, but before it could be heard by the Board, he in writing on 14 August 2018 wrote to withdraw his appeal as he considered it safe to return to Pakistan, and by a decision dated 17 August 2018 the Board upon being satisfied that his application to withdraw his appeal was freely sought, that he understood the consequences of the withdrawal, and that he had good reason for his withdrawal, directed that his appeal be withdrawn, and confirmed both decisions of the Director.

8.  However, less than 1 year later on 19 July 2019 the Applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date other than some bare assertion that he still had problem in his home country but without providing any further necessary or relevant details or particulars or elaboration as to how it was so, nor did he put forward any proper ground for his intended challenge of the Board’s decision.

9.  By then the Applicant was also 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

10.  As the last day of the three-month period for him to file his Form 86 to challenge the Board’s decision fell on 17 November 2018, the Applicant was therefore some 8 months 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: AW v Director of Immigration [2016] 2 HKC 393.

11.  In the Applicant’s case, a delay of 8 months must be considered as very substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 17 August 2018 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

12.  As for the merits, if any, of his intended application, as noted above that the Applicant has failed to put forth any proper grounds for his intended challenge. As such, and in the absence of any error of law or irrationality 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 merits in his intended application either.

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 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.

14.  In the Applicant’s case, the Board acceded to his request to withdraw his appeal upon being satisfied that his request was freely sought, that he fully understood the consequences of the withdrawal, and that he had good reason to do so in that he considered it safe to return to his home country, and in the absence of any evidence to suggest that his request to withdraw his appeal was not validly made or that there had been any significant change of circumstances since the withdrawal of the appeal to justify his application, I do not find any reasonably arguable basis to challenge the decision of the Board which was made at the Applicant’s own request.

15.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if real 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.

16.  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 the Director’s consideration and assessment of the Applicant’s claim or in the Board’s consideration of his request to withdraw his appeal.

17.  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