Application for Leave to Apply for Judicial Review

HCAL 1247/2018

[2020] HKCFI 1319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1247 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 9 February 2018 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 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 33-year-old national of Pakistan who entered Hong Kong illegally on 1 November 2013 and surrendered to the Immigration Department on 12 February 2014 when he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by the local villagers for refusing to go through the marriage arranged for him by the tribal council known as Jirga in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Whali-Zer, Chakwal, Punjab, Pakistan where his mother and some siblings still reside.

3.  In 1997 when he was 11 years old, a meeting in his home village was held by the tribal council of elders known as Jirga to decide, amongst other things, on the arranged marriage for the young men in the village, and it was decided that both the Applicant and his elder brother who was a few years older were to marry their cousins, but his father was against the decision which infuriated the village council, and as a result his father was said to have been subsequently murdered by villagers pursuant to the order of the Jirga.

4.  In 2001 the Applicant’s elder brother married his cousin as arranged, but as he was unhappy with the marriage he later divorced his wife and killed his grandfather whom he blamed for the arranged marriage before fleeing the village, and he was subsequently captured by the villagers in 2013 and was tortured by order of the Jirga.

5.  Upon seeing what happened to his elder brother and as he himself was also against his own arranged marriage, the Applicant became fearful that the fate would happen to him,and before his arranged marriage was to take place he fled to Malakwal to take shelter in a friend’s place, but when he heard that the Jirga had ordered that he be captured and killed for disobeying its decision, he decided that it was no longer safe to remain in Pakistan,and so in October 2013 he departed for China, and from there he sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 9　September 2016 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any of the screening interviews scheduled before the Immigration Department due to alleged medical reasons, and in lieu he answered a list of questions raised of his claim supplied by the Department.

6.  By a Notice of Decision dated 7 July 2017 the Director of Immigration (“the 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 (“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”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real or substantial risk of him being harmed or killed by his local villagers upon his return to Pakistan due to the absence of past ill-treatment from them or any reliable evidence that the Jirga in his home village was pursuing him, 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 (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 201 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 to move to other part of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for the Jirga or his local villagers to locate him.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 28 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 9 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found the Applicant’s evidence of alleged events occurred in Pakistan prior to his departure as vague, inconsistent and unpersuasive that he was not considered as a credible witness, and rejected his claims of what happened in his home village or of his arranged marriage decided by Jirga in his village or of what had happened to his father or brother, and concluded that he does not face any real risk of proscribed harm from the Jirga in his home village if refouled to Pakistan that his claim failed on all the applicable grounds.

10.  On 3 July 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 in his supporting affirmation of the same date he put forward the following grounds for his intended challenge as summarized:

(1)       procedural unfairness in the Director’s failure to provide him with further screening interview before the determination of his claim;

(2)       irrationality in the Director’s failure 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)       irrationality in the Director’s failure to properly evaluate the effectiveness pf the Pakistani police to protect the citizens due to corruptions and inability to implement law and order in Pakistan;

(4)       procedural unfairness in the Director to provide him with the hearing bundle for his appeal before the Board without explaining the documents to him; and

(5)       procedural unfairness in the Board’s rejection of his claim without explaining its decision to him.  

11.  By then the Applicant was however late 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.

12.  As the last day of the three-month period for the Applicant to file his Form 86 fell on 9 May 2018, he was therefore seven 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: see Re Thomas Lai [2014] 6 HKC 1;and AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of seven weeks must be considered as significant,for which he explained at the hearing of his application that he was sick with cold and fever at that time but was unable to provide any particulars or evidence as to exactly when and for how long was he sick, of which I note was the same reason given for his failure to attend the screening interviews before the Immigration Department, and in the absence of any supporting medical evidence of any serious or chronic health problem in the Applicant, and given the relative minor nature of his alleged sickness and that according to the available materials before the court that he was otherwise a relatively healthy and able-bodied young adult, I am not satisfied with his explanation and do not accept that he has provided any good reason for his delay.

14.  As for the merits of his intended application, I find his proposed grounds mostly just broad and vague assertions containing several pages of 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 the Director fail to take into account relevant COI or being selective or improperly rely on irrelevant COI.  Given the fact that he had been repeatedly given further opportunities to attend the re-scheduled screening interviews arranged by the Director for him but which he repeatedly　failed to do so without any acceptable reason, and that he was subsequently given a list of questions in lieu when he was able to answer with the assistance by DLS, and of which he was subsequently able to express his such grievances during his oral hearing before the Board in his appeal which was treated as a rehearing of his claim and with assistance by an interpreter.  In the circumstances I do not find any basis or merit in any of these complaints of the Applicant, or that any of them is reasonably arguable for his intended challenge.

15.  Essentially his claim was rejected by the Board on its adverse finding on his credibility as to his claimed fear of harm for the thorough and detailed analysis and reasoning　set out in paragraphs 30 – 43 of its decision and with the benefit of hearing him in evidence and in answers to questions raised of his claim during the oral hearing of his appeal, and in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant,I do not finding any　merit in his intended application or any reasonably arguable basis to challenge the finding of the Board.

16.  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 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.

17.  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.

18.  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 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