ADIL HUSSAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2649/2018

[2022] HKCFI 1225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2649 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 2 December 2016 refused; and

2.  leave to apply for Judicial Review of both the decisions of Torture Claims Appeal Board dated 2 December 2016 and 28 September 2018 respectively dismissed.

Observations for the Applicant:

1.     The Applicant is a 39-year-old national of Pakistan who entered Hong Kong illegally on 2 November 2007 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle and cousins over a land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.     The Applicant was born and raised in Rawalpindi, Punjab, Pakistan where he inherited his father’s farmland, but which his uncle had coveted for years, especially since 2005 when its value had gone up after the government had built a road right next to the land, but when the Applicant rejected his uncle’s offers to purchase his land, his uncle and cousins became hostile to him and made threats against him, and after being attacked by them on several occasions, and to avoid further confrontations with them, the Applicant left the country in April 2006 for Dubai where he found a job as a construction worker.

3.  By the end of 2006 the Applicant returned to his home in Pakistan, but soon his uncle and cousins resumed their threats and harassments against him over their land dispute, and after being attacked twice by them with wooden sticks and metal rods, the Applicant departed Pakistan on 24 October 2007 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 Supplementary Claim Form (“SCF”) on 5 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 13 November 2014 the Director of Immigration (“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 Ordinance, Cap 383 (“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”).

5.  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 uncle and cousins upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of them to seriously harm or kill the Applicant other than to put pressure on him to sell his land to them, that in any event it was a private land dispute between them 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 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 part of Pakistan away from his home district in large cities where it would be difficult if not impossible for his uncle and cousins to locate him.

6.  On 25 November 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 14 May 2015 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 2 December 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board found the Applicant’s evidence illogical and unconvincing that it doubted the credibility of his claim of fear of harm from his uncle and cousins over their land dispute that caused him to flee to Hong Kong, but that in any event even if his claim were true that it was a private land dispute within their family without any official involvement that state/police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located by his uncle that his claim for non-refoulement protection failed on all the applicable grounds.

8.  Meanwhile on 14 February 2017 the Director on his own initiative invited the Applicant to submit any 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 2 March 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

9.  The Applicant again lodged an appeal to the Board against this Further Decision of the Director, for which the Board did not hold any further oral hearing and proceeded to deal with this appeal in the absence of the Applicant and on paper, and on 28 September 2018 the Board dismissed his appeal upon finding no substances in his grounds of appeal, and that in any event his claim which was based on a land dispute with his family members simply did not engage the BOR 2 ground.

10.  On 22 November 2018 the Applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision, but instead of that last decision of 2 months ago which dismissed his appeal against the Director’s Further Decision regarding his BOR 2 Claim, the Applicant stated that it is the earlier decision dated 2 December 2016 that he is seeking to challenge by his application, and in his supporting affirmation of the same date he just repeated his claim as before that he still has problem in his home country that he wants to stay in Hong Kong but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application other than stating that he is still waiting for his family in Pakistan to send him further supporting evidence despite the fact that he has been in Hong Kong making the claim over the past 15 years.

11.  For the challenge of the Board’s decision of 2 December 2016, however, the Applicant would be seriously out of time, as Order 53 Rule 4(1) of the Rules of 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 form 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 him to file his Form 86 against the Board’s decision of 2 December 2016 fell on 2 March 2017, the Applicant was therefore more than 20 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: AW v Director of Immigration [2016] 2 HKC 393.  

13.  In the Applicant’s case, a delay of more than 20 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I fail to see any good reason for his such serious delay.

14.  As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge or any merits in his intended application either.   

15.  Even if the Applicant were in fact to challenge the later decision of the Board in dismissing his appeal against the Director’s Further decision instead, of which he would have been within time to do so, but as correctly found by both the Director and the Board in their second decisions, the basis of his claim even on his own case simply did not engage the BOR 2 ground, and as such I do not find any reasonably arguable basis for such challenge either.   

16.  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 the Applicant to present and articulate his 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 in their decisions 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.

17.  As noted above, the fact is that it has been established by both the Director and the Board in their earlier 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

18.  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 any of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim on all the applicable grounds.

19.  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