KHAN KHURSHEED AHMED v. TORTURE CLAIMS APPEAL BOARD

HCAL 3494/2019

[2022] HKCFI 1869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3494 of 2019

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 56-year-old national of Pakistan who entered Hong Kong illegally on 11 February 2008 and was arrested by police on 23 June 2008. 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 a fellow villager over their monetary dispute. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Khanpur, Katora, District Rahim Yar Khan, Punjab, Pakistan. After leaving school he married his wife and raised a family with 3 children in his home village, and made his living as a fruits reseller by obtaining goods from the wholesalers with delayed payments until the end of each month guaranteed by his father’s old friend Rehmat who was a local fruits dealer.

3.  One day in November 2007 while he was on his way to meet the wholesalers to settle his outstanding bills for the month, the Applicant lost all his money on a bus, and hence was unable to pay his bills, and as a result Rehmat as the guarantor had had to settle the payments on his behalf, and when the Applicant afterwards was unable to repay him, Rehmat became furious and made threats against him.

4.  Later when the Applicant heard that Rehmat was sending men to look for him in the village, the Applicant became fearful that those men were going to harm or kill him, and so he fled from his home village to take shelter in a relative’s place, and on 6 February 2008 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 June 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 7 August 2014 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 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”).

6.  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 Rehmat upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from him, that there was no evidence of any real intention of Rehmat to harm or kill him other than hearsays or speculations, that in any event it was a private monetary 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 such as Lahore where it would be difficult if not impossible for Rehmat to locate him.

7.  On 20 August 2014 the Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which he attended an oral hearing on 22 December 2014 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 13 November 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board accepted the Applicant’s claim of threat from Rehmat against him prior to his departure of Pakistan but found it was a private monetary dispute between just the two of them without any official involvement that state/police protection would be available to the Applicant if needed upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located by Rehmat that his claim for non-refoulement protection failed on all applicable grounds.  

9.  Meanwhile on 19 December 2016 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 17 January 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 Risk being violated upon his return to Pakistan.

10.  On 24 September 2018 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, but on this occasion his Notice of Appeal was found to have been filed outside the 14-day period required by Section 37ZS (1) of the Immigration Ordinance which had expired on 2 February 2017, and in pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a Decision dated 8 November 2019 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that the delay of more than 1 ½ years was extremely substantial and inordinate, that there was no good reason for his serious delay given that his explanation of his medical problems in fact occurred some years ago, nor was there any special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal.

11.  On 25 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. As such 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.

12.  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.

13.  In the Applicant’s case, the Board refused to allow the seriously late filing of his Notice of Appeal regarding his BOR 2 Claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of having already heard him in oral evidence in his earlier appeal and having made findings as noted above for rejecting his claim under all the other applicable grounds of torture risk, BOR 3 risk and persecution risk of which the Applicant had never brought any legal challenge, and given the factual basis of his claim even on his own case at the highest was a private dispute without any state or official involvement that it simply did not engage the BOR 2 ground in its limited scope, and while the Board may have omitted to consider the merits of his appeal in its decision not to allow the late filing, of which it was required to do: see Qasim Ali [2019] HKCA 430, the fact is that the Applicant never put forth any grounds of appeal in his Notice of Appeal for the Board to consider their merits. As such, and for the reasons given, there is simply no basis to challenge the finding of the Board.

14.  In addition, as 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.

15.  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 or in the Board’s decision to refuse the late filing of his appeal regarding his BOR 2 Claim which as noted above was simply not factually engaged.

16.  Furthermore, the Applicant recently on 23 May 2022 filed an affirmation requesting to withdraw his application as he no longer has any problem in his home country that he wants to go home.

17.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation of no longer any problem for him to return to his home country, I 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