AHMED WAQAR v. IMMIGRATION DEPARTMENT

HCAL 267/2018

[2020] HKCFI 947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 267 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 16 May 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 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 24-year-old national of Pakistan who entered Hong Kong illegally on 9 March 2016 and was arrested by police on the same day.  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 leader of rival political party Pakistan Muslim League (N) (“PML(N)”) over a dispute during a local election.  He was subsequently released on recognizance pending the determination of his claim.

2.     The Applicant was born and raised in Village Kot Kay, Tehsil Hazro, District Attock, Punjab, Pakistan.  After leaving school he worked as a store helper in his home village and became a supporter of the political party Pakistan Tehreek-e-Insaf (“PTI”).

3.     In November 2015 during the local election, the Applicant with other fellow PTI supporters accompanied their candidate to vote at the local polling station where the PML(N)’s candidate Ishaq and his supporters were also there, and after Ishaq won the election,he mocked the PTI’s candidate, and when the Applicant responded with a taunting remark,a fight broke out between them during which the Applicant was struck by Ishaq and his followers with wooden sticks until they were restrained by passers-by, and before they left Ishaq threatened that he would kill the Applicant.

4.     Afterwards the Applicant went into hiding in Village Malik Mala in Attock for two months without incidents, but when he heard that Ishaq was looking for him everywhere and had beaten up one of his uncles for refusing to disclose his whereabouts, the Applicant felt it was no longer safe to remain in Pakistan, and so he departed in February 2016 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim upon being arrested by the police, for which he completed a Non-refoulement Claim Form on 8 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.     By a Notice of Decision dated 26 August 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”).

6.     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 to the Applicant from Ishaq upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that his problem with Ishaq was a private personal dispute between them which was not political motivated and 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 193 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 young man with work experience to move to other part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for Ishaq to locate him.

7.     On 9 September 2016 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which the Board did not conduct any oral hearing and instead dealt with his appeal in his absence and on paper, and on 16 May 2017 it dismissed his appeal and confirmed the Director’s decision.

8.  In its decision the Board decided it was not necessary to deal with any issue of credibility and hence did not conduct any oral hearing in accepting the Applicant’s account of being attacked by Ishaq in that single incident, but found that it was a private dispute of grudges between them without any political racial or religious factors or elements or any official involvement that state/police protection and reasonable internal relocation alternatives would be available for the Applicant to move safely to other part of Pakistan that his claim failed on all applicable grounds.

9.  By a Notice of Further Decision dated 14 November 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”).

10.  On 21 February 2018 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,and in his supporting affirmation of the same date he merely stated as follows:

“ to appeal and review and to reject the decision made by the immigration department against my claim. They disregard my dangerous situation.”

11.  He was however by then seriously late with his Form 86, 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 16 August 2017, he was therefore more than six 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: 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 more than six months must be regarded as substantial and excessive, for which he did not provide any explanation, nor as noted above did he put forward any grounds or identify any error of law or procedural unfairness in the Board’s decision, in the absence of which I do not find any merits in his intended application.

14.  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 an applicant to present and articulate his or her 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 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.

15.  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, I agree that the Board was entitled to find 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 their consideration and assessment of the Applicant’s claim.

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