AZIZ NASIR v. KEVIN ANTHONY BROWNE, ESQ., AND ANOTHER

HCAL 1030/2017

[2018] HKCFI 2032

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1030 of 2017

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 dated 28 February 2017 be refused; and

(2)   Leave to apply for judicial review refused.

It is further directed that:

(1)  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,

(2)  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,

(3)  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,

(4)  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,

(5)  Liberty to apply.

Observations for the Applicant:

1.  The applicant is a 34-year-old national of Pakistan who entered Hong Kong illegally on 27 April 2014 and was arrested by police on 28 May 2014.  After being referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his girlfriend’s family which were against their relationship.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Rawalpindi, Punjab, Pakistan.  After leaving school he had worked in various jobs in Islamabad.  In 2012 he met his girlfriend in Rawalpindi and soon started a relationship with her but of which they kept as a secret from her family.

3.  One afternoon in December 2012 while they were out together they ran into her elder brother who started yelling at his sister to go home and warned the applicant that he would teach him a lesson for going out with his sister and thus dishonoring their family.

4.  On the same evening his girlfriend’s father and elder brother together with several other men armed with knives and rifles came to the applicant’s home and assaulted him by hitting him with the butts of their rifles all over his body with his left arm also cut by a dagger until they were intervened by the applicant’s neighbors, and before he left the father warned the applicant that he had only been taught a lesson and that next time he would be killed.

5.  After the assault the applicant became fearful for his life as his girlfriend’s father was an influential man in the village with political connections, and after taking shelter at his friend’s home for several days, he departed Pakistan on 31 December 2012 for China where he stayed for more than a year before sneaking into Hong Kong in late April 2014 and lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 May 2015 and subsequently attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 24 July 2015 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 found no sufficient evidence to suggest that the applicant’s perceived risk will materialize and that the level of such risk from his girlfriend’s family upon his return to Pakistan was assessed as low, that there is no evidence of any official involvement in those threats 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 away from his home district such as Islamabad or Lahore that it would be difficult if not impossible for his girlfriend’s family to locate him.

8.  By a Notice of Further Decision dated 3 January 2017 the Director again rejected the applicant’s claim in the absence of any additional facts from the applicant 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”).

9.  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, which notice of appeal he filed on 6 August 2015, and for which he attended an oral hearing on 7 September 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 28 February 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision of 24 July 2015.

10.  In its decision the Board found the applicant’s dispute with his girlfriend’s dispute of a private domestic nature that in the absence of any official involvement that state or police protection would be available to him upon his return to Pakistan, and at his relatively young age with past work experience that there is no circumstance that would make it unreasonable for him to relocate elsewhere in Pakistan.

11.  However, at the time of that decision the Board was apparently not aware of the Director’s further decision on the applicant’s BOR 2 risk claim given the close proximity in time of the two decisions, the Board therefore proceeded to consider the applicant’s claim under BOR 2 risk and on 20 November 2017 issued a further decision to find that the applicant has failed to adduce any evidence that his rights under BOR 2 might be violated upon his return to Pakistan and confirmed the Director’s further decision dated 3 January 2017.

12.  On 7 December 2017 the applicant filed his Form 86 (dated 13 November 2017) for leave to apply for judicial review of both decisions of the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)  irrationality in the adjudicator’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 adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Pakistan;

(4)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirected himself as to the extended meaning of state protection;

(5)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(8)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

13.  However, by then the applicant was several months late with the filing of his Form 86 as regard the Board’s first decision of 28 February 2017 (“1^st Decision”) 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.  Hence with the last date for making his application against the 1^st Decision to be 28 May 2017, the applicant was late by more than six months for which he did not provide any explanation in his affirmation or at the oral hearing of his application other than that he was not aware of the rule, although he has no such problem with the Board’s further decision of 20 November 2017 (“2^nd Decision”).

14.  A delay of more than six months must be regarded as excessive, and the absence of any acceptable explanation further weakens any indulgence for extending time, with the only remaining relevant factor of significance for consideration must in the circumstances be the merits of the applicant’s intended challenge as reflected in his proposed grounds, of which it has been said that where an applicant is many months out of time, leave may be refused however strong the complaint might otherwise be: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676; Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & Anor CACV 63/2015.     

15.  Here the proposed grounds are all just broad and vague assertions of the applicant 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 Board or the adjudicator had erred in the decision, or in what way did the adjudicator 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 psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

16.  The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given insufficient time to prepare for his appeal.

17.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, record of his screening interview and the Director’s decision should be well familiar to the applicant as they had in fact already been made available to him earlier when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at the appeal hearing before the Board he never raised any issue with the hearing bundle or requested the adjudicator for further time to enable him to better prepare for his appeal.  Even now in his present application with an oral hearing before me the applicant did not make any further representation or request to adduce any additional facts relevant to his claim including BOR 2 risk.  In the circumstances I do not find anything amiss arising from the hearing bundle being given to the applicant only shortly before his appeal before the Board.

18.  The fact is that once it has been established by both the Director and the Board in their decisions 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, they were entitled to conclude of no justification to afford the applicant with non-refoulement protection in Hong Kong, and I do not find any reason for usurping their role as the primary decision makers: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

19.  In the premises and having proceeded to consider 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 reason for extending time, I accordingly refuse his application regarding both decisions of the Board.

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