MUMTAZ USMAN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 209/2018

[2019] HKCFI 123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 209 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 the Applicant being absent 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 17 February 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/she 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:

The applicant is a 31-year-old national of Pakistan who was arrested by police on 13 November 2012 for illegally remaining in Hong Kong, and after he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by certain members of the political party Pakistan Muslim League (Q) (“PML(Q)”) for being a witness to a murder committed by them and/or by the family of the murder victim for failing to be the witness at the murder trial.  He has since been released on recognizance pending the determination of his claim.

The applicant was born and raised in Lahore, Punjab, Pakistan.  After leaving school he worked as an electrician and became a supporter of the political party Pakistan Muslim League (N) (“PML(N)”).

On 31 March 2012 whilst the applicant was with some of his friends and fellow PML(N) supporters at the party’s office in Lahore, seven PML(Q) members shot at their office with automatic rifles that killed a PML(N) member ND and injured another member.  After the shooting the applicant together with other witnesses gave a witness statement to the police in their investigation.

Several days later some PML(Q) supporters threatened the applicant that he would be killed if he were to be a witness in ND’s murder trial, and when he reported the threats to the police, they did not take any action due to PML(Q)’s influence in the area.

A few weeks later when he was seen attending the hearing of the murder trial which was subsequently adjourned, the applicant was assaulted by several PML(Q) supporters with wooden sticks all over his body and was warned that he would be killed if he was seen in court again.

After the incident the applicant took shelter at his sister’s home in Multan for two months, but when he was approached by the victim’s family to be the witness in the forthcoming murder trial, the applicant felt being threatened by both sides that it was no longer safe for him to remain in Pakistan, and so he departed Lahore on 22 October 2012 for Hong Kong where he lodged his torture claim, and when it was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism (“USM”), for which he completed a Supplementary Claim Form (“SCF”) and attended screening interview before the Immigration department with legal representation from the Duty Lawyer Service.     

By a Notice of Decision dated 9 January 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 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”).

In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm to him from those PML(Q) people or the family of the victim upon his return to Pakistan as low after all these years since the court proceedings, that it was a personal dispute between the applicant and those PML(Q) people or the victim’s family and in the absence of 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 work experience to move to other areas away from his home district in large cities such as Karachi where it would be difficult if not impossible for his perceived enemies to locate him.

On 22 January 2015 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 16 February 2016 before the adjudicator for the Board during which he gave evidence and answered questions put to him by the adjudicator.  On 17 February 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

In its decision the Board found the applicant’s evidence confused, inconsistent and contradictory as to the shooting incident and the subsequent court hearings and that his credibility questionable, and that on the totality of evidence it was not persuaded that he had witnessed the alleged shooting incident or that he was required to attend court as a witness of the incident or that he had been threatened or assaulted by the PML(Q) people as a result, and concluded that his non-refoulement claim fails on all applicable grounds.  

By a Notice of Further Decision dated 8 August 2017 the Director again rejected the applicant’s claim in the absence of any further representation 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”).

On 17 August 2017 the applicant again lodged an appeal to the Board against the further decision of the Director, and in the absence of any additional facts submitted by the applicant for his claim under BOR 2 risk, the Board did not find it necessary to require a further oral hearing, and on 7 February 2018 again dismissed his appeal after finding that he failed to establish his claim under BOR 2 risk.

On 12 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and of the Board, but only of their earlier ones dated respectively 9 January 2015 and 17 February 2017, and in it he put forward the following grounds for his intended challenge:

that the Director and the adjudicator reached the wrong decision in assessing his USM claim;

that their decisions were unreasonable or unfair as required by the Wednesbury test;

that they failed to consider that his right of life must be protected from extra-judicial killings which he may face if deported to Pakistan; and

that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence in support of his non-refoulement claim as well as his appeal.

By then the applicant was obviously very 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.

The last date for the applicant to file his Form 86 for leave to review the first decision of the Board fell on 17 May 2017, and hence he was almost nine months late with his application which is a very substantial delay, but for which he did not provide any explanation in his Form 86 or his supporting affirmation of the same date in which he merely exhibited the previous decisions of the Board, nor did he appear at his oral hearing again without any explanation.   

To consider whether there is good reason for extending time in the circumstances, it is crucial to see if there is any merit in his intended application as reflected by his proposed grounds, which are however all just broad and vague assertions of the applicant containing several 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 were the decisions unfair or unreasonable, or what relevancy was extra-judicial killings to his claim, or in what way did the adjudicator fail to give him sufficient time or opportunity to provide relevant evidence in support of his claim or appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, nor can I find any basis or merit in any of them.

The fact is that the applicant’s claim was rejected by the Board essentially on his credibility for the detailed analysis and reasoning set out in paragraphs 59 – 74 of its decision, and as has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.         

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.

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 good reason for extending time, I refuse to grant him leave to file his Form 86 out of time, and 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