MUHAMMAD IKRAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 64/2023

[2024] HKCFI 2854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 64 OF 2023

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 39-year-old national of Pakistan who entered Hong Kong illegally on 16 June 2021 and was arrested by police on 28 June 2021. After he was referred to the Immigration Department for investigation, 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 family of his sister-in-law who blamed him for her death. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Dal Mehmood, Tehsil & District Mirpur, Azad Kashmir, Pakistan. After leaving school he worked in a fruits and vegetable store, got married and raised a family with 3 children in his home village.

3.  In about February 2018 his elder brother Imran and his wife Bibi went to Faisalabad for a visit during which they broke into some serious arguments that led to a fight when Imran stabbed and killed Bibi with a knife, for which Imran was subsequently convicted for her murder and was given a lengthy prison term.

4.  However, even though the Applicant was not involved at all in the incident, Bibi’s family somehow blamed him for her death, and one day shortly thereafter her brothers together with several unknown men armed with weapons including pistols and hockey sticks came to the Applicant’s home looking for him, but when they could not find him as he was then in the village market, they then threatened his wife and children and also vandalized his home, and warned that Bibi’s family wanted to kill him in revenge for her death.

5.  As a result the Applicant became fearful for his life and fled to Rawalpindi to take shelter in his cousin’s place, but later when he heard that Bibi’s brothers were coming to Rawalpindi to look for him, the Applicant decided that it was no longer safe to remain in Pakistan, and so in early 2019 he departed 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 Non-refoulement Claim Form (“NCF”) on 19 November 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 28 January 2022 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”).

7.  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 his sister-in-law’s family upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that it was a private dispute within the family without 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 233 million people spread across a vast territory of more than 770,000 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 Lahore where it would be difficult if not impossible for anyone to locate him.

8.  On 10 May 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was filed outside the 14-day period after notice of the decision was given to him as required by Section 37ZS(1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) of the Ordinance (amended 7 of 2021 s.19) the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Applicant’s Notice of Appeal by taking account only of the statement of reasons stated in the application for the late filing of the Notice of Appeal and the supporting evidence as stipulated by the subsection.

9.  In his application for the late filing of his Notice of Appeal the Applicant gave an explanation that he could not read English and did not know how to prepare his Notice of Appeal until he was able to get help from a friend, but by then he was already out of time with his intended appeal. He did not provide any evidence in support of his assertions.

10.  By a Decision dated 6 January 2023 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that it was late by almost 3 months, that the delay was substantial, that his explanation for the delay was unsupported by any evidence and was unmeritorious, and that in the circumstances there was no good reason for allowing the late filing of his Notice of Appeal.

11.  On 16 January 2023 the Applicant filed his 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 in his supporting affirmation of the same date in which he just stated that he does not agree with the decision but without putting forward any ground for his intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12.  The Board was in my view entirely correct to refuse the seriously late filing of the Applicant’s Notice of Appeal for the reasons set out in its decision, and while it is no longer necessary for the Board under Section 37ZT(2) of the Ordinance as amended since 1^st August 2021 to take account of any other relevant matters of fact such as the merits of the claim or appeal in its consideration of the application for late filing, the fact is that it has also been correctly established by the Director in his decision that on the factual basis of the Applicant’s claim even on his own case that his claimed risk even if real 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.

13.  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 respective consideration and assessment of the Applicant’s claim or of his application for late filing of his appeal.

14.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and as recently confirmed by the Immigration Department of his subsequent departure from Hong Kong to return to his home country, I accordingly 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