BUTT MUHAMMAD GULZAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 163/2021

[2021] HKCFI 1087

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 163 of 2021

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 (counsel for) 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 40-year-old national of Pakistan who entered Hong Kong illegally on 13 March 2016 and surrendered to the Immigration Department on 17 March 2016 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the rival political party Pakistan Muslim League (Nawaz) (“PLM(N)”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mohalla Jinnah Coloney, Jallal Pur Jattan, Gujrat, Punjab, Pakistan. After leaving school, he worked as a tailor in his home district, got married with a family of 2 children, and became a supporter of the political party Pakistan Tehreek-e-Insaf (“PTI”) regularly attending their local activities but without holding any office in their party.

3.  In late 2006 he and his fellow PTI supporters started to experience violent conflicts with the local PML(N) supporters during which the Applicant was threatened and beaten on several occasions, and to avoid further threats and assaults, he left Pakistan in 2008 to work in United Arab Emirates until 2011 when he returned to his home district in Pakistan and resumed his participation in PTI activities.   

4.  However, one evening in 2012 while attending a local PTI meeting, the Applicant and his fellow supporters were attacked by a group of PML(N) supporters during which he suffered injuries and had to receive medical treatments at the local hospital.

5.  After the assault he became fearful for his safety and fled to take shelter in his relatives’ places in Sialkot and then in Narowal, but when he later heard that those PML(N) supporters were still looking for him everywhere, he felt it was no longer safe to remain in Pakistan, and so on 10 March 2016 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 February 2018 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 8 March 2018 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local PML(N) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason that he would still be targeted by them after all these years and given that he held no official post in PTI, that 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”) shows that reasonable internal relocation alternatives are available in Pakistan with a large population of 201 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 parts of Pakistan away from his home district in large cities such as Islamabad or Karachi where it would be difficult if not impossible for those PML(N) supporters to locate him.

8.  On 19 March 2018 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 2 September 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 16 September 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found the Applicant’s evidence on his involvement in PTI vague and lacking of knowledge about its political principles and policies and that his evidence of ongoing targeting at the hands of the local PML(N) supporters not credible and inconsistent with the COI before the Board given his low level involvement in PTI and after all those years of his departure from Pakistan that it is not satisfied that there are substantial or strong grounds or a real chance or risk that he will suffer harm amounting to torture or CIDTP or risk to life or persecution from those local PML(N) supporters or any other political parties upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 17 February 2021 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 that he does not agree with the decision as he could not go back to his home country where his life would still be in danger but without putting forth any proper ground for his intended challenge.

11.  By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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 December 2019, he was therefore late by 14 months 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 and to public administration: AW v Director of Immigration [2016] 2 HKCA 393.

13.  In the Applicant’s case, a delay of 14 months must be considered as extremely substantial and excessive, for which he did not provide any explanation in his supporting affirmation, and as the record shows that the Board’s decision was sent on the same day to his last reported address without being returned through undelivered post, I do not find any good or valid reason for his such serious delay.

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

15.  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.

16.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 51 – 60 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

17.  The fact is that it has been established by the Director in his 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 parts of Pakistan, a decision also confirmed by the Board, 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.  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.

19.  Furthermore, the Applicant on 11 April 2021 wrote to the court requesting to withdraw his application as he has settled his problems in his home country and that he now wants to return to Pakistan as soon as possible. 

20.  In the premises, and as I am not satisfied for the reasons given 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 with his application, and in view of his latest confirmation of his wish to return to his home country now that his problems there have been resolved, I accordingly accede to his request and 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