HUSSAIN MAHBOOB v. WESLEY WONG, TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 19/2018

[2018] HKCFI 2180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 19 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.      an extension of time for the application for leave to apply for Judicial Review be refused; and

2.      leave to apply for judicial review dismissed.

It is further directed that:

(1)   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,

(2)   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,

(3)   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,

(4)   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,

(5)   Liberty to apply.

Observations for the Applicant:

1.  The applicant is a 36-year-old national of Pakistan who entered Hong Kong illegally on 24 December 2013 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his neighbor over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Gorsian, Jatian Tehsil, District Bhimber, Mirpur Azad Kashmir, Pakistan where his mother and siblings still live.  After leaving school he got married with four children and worked in various manual jobs and farmed in his father’s farmland in the village which he and his brothers subsequently inherited after his father passed away in 2009.

3.  One day in 2010 his neighbor JB, an influential man in the village with political connection as a member of the Pakistan Peoples Party (“PPP”) who also owned the land adjacent to the applicant’s farmland, approached the applicant that he would like to acquire his farmland as he wanted to expand his land, and when the applicant refused, JB threatened to harm his family and to kill him unless he was willing to reconsider his demand.

4.  On the following day the applicant reported the matter to the local police who just said they would look into the matter but without making any investigation.  A week later whilst on his way to Jatlan, the applicant ran into JB and his followers, and when the applicant again rejected his demand, JB and his men attacked him with fists and sticks that caused cuts and bruises all over his body and threatened to kill him before they left.

5.  After receiving treatment at a local clinic the applicant returned home without making any further report to the police as he did not think it would be of any use, but when JB and his men came to his home one day in August 2010 and again threatened to kill him if he still refused his demand, the applicant moved with his family to take shelter at his in-laws home in Dudhyal where they stayed without any incidents until December 2013 when the applicant was advised by his friend to seek protection in Hong Kong, and so on 16 December 2013 he departed Pakistan for China and later sneaked into Hong Kong and lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 26 October 2015 and attended screening interview with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 23 December 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”).

7.  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 upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from JB, that he and his family had stayed in Dudhyal for more than three years without any incident indicates that JB had no further adverse interest in him after he left his home village, that their conflicts solely arose from a private land dispute with no political element or official involvement that state and police protection would be available to him 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 199 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 work experience to move to other area away from his home district such as Dudhyal where he had lived with his family before without any incidents, or in large cities such as Islamabad where it would be difficult if not impossible for JB to locate him.

8.  By a Notice of Further Decision dated 14 February 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”).

9.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, and for which he attended an oral hearing on 14 June 2017 before the Board during which he just confirmed that he had already said everything that had been submitted and there was nothing further to add.  On 16 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found even in the applicant’s own case that there had been no risk of harm from JB to him or his family for more than three years prior to his departure for Hong Kong that he has not made out a case where he needed non-refoulement protection, and that in any event as there was no official involvement in his dispute with JB or any suggestion that JB and his associates had any influence or resources throughout the country, that it would not be unduly harsh for the applicant to relocate to other parts of Pakistan to avoid any of their threats, in particular now that according to reliable COI that PPP is no longer the ruling party in Pakistan.

11.  On 4 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward various grounds for his intended challenge which can be summarized as follows:

(1)     that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in his case which led to an unfair outcome in rejecting his non-refoulement claim as he was tortured at the behest of and in full collusion of the police and the state law enforcement as well as those high up in the political circles, and hence the state should be rendered liable to him for failing to provide reasonable protection for its citizens under the duty of due diligence;

(2)     that the Director failed to take into account of or put proper weight in relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of the inability of the police in Pakistan to protect its citizens as the corruption and incompetency of the administration is still a very serious problem in the consideration of his claim;

(3)     that the Director failed to attain high standards of fairness required by the Wednesbury test in the decision which is unreasonable in the public law sense;

(4)     that the adjudicator failed to make sufficient enquiries before finalizing his determination by stating that the applicant had failed to provide credible evidence to prove the material elements of his claim when he had no or limited means to bring his evidence before the Board whilst in custody of the Immigration detention center, and that the adjudicator failed to give him sufficient opportunity to arrange relevant evidence to support his claim and his appeal.

12.  The applicant was however by then 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.

13.  In considering whether to extend time the Court will have regard to the length of delay, the reasons for the delay, the merits of the intended application, prejudice to the putative respondent and to public administration, and questions of general public importance: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & Anor CACV 63/2015.

14.  As the Board’s decision was made on 16 August 2017, the last date for the applicant to make his application for leave to apply judicial review fell on 16 November 2017, and hence when he filed his Form 86 on 4 January 2018, there was a delay of some one and a half month which was not insubstantial, for which he explained at the hearing that because at that time he was being detained by the Immigration Department and therefore only received the Board’s decision at a much later date.

15.  However, according to the Director’s decision the applicant was released on recognizance back on 18 January 2014 and that thereafter all the correspondence from the Immigration Department to him were sent to his residential address, as did the Board with its decision, and while he might have been detained again later by the Immigration Department for reason he did not reveal, he admitted that it was only in December 2017 when by then he was already out of time with his Form 86.  As such I do not accept he has provided any valid explanation for his delay.

16.  I shall then turn to assess the merits of the intended challenge against the Board’s decision, which is crucial in the consideration of whether time should be extended: see AW v Director of Immigration, supra; and Re Gurung Min Bahadur [2018] HKCA 226.

17.  However, the grounds put forward by the applicant for his application are all just broad and vague assertions 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 Director or the adjudicator had erred in the decision, or in what way did the Director fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was the concept of state acquiescence to his case when there was not even any evidence from him of being threatened or tortured by police, or how the Director had failed to apply high standards of fairness in the consideration of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any merit or basis in any of these grounds.

18.  His complaint of not being given any opportunity to provide supporting evidence before the Board as he was being detained in the Immigration detention center as already noted above is plainly wrong as the records show that he had since 18 January 2014 been released on recognizance, and when he claimed he was being detained again in December 2017, it was already long past his appeal process before the Board when he stated to the adjudicator that he had nothing further to say.  Even now in his present application and during his oral hearing before me, he did not produce any further evidence or materials in support of his claim.  There is therefore simply no basis for this complaint of the applicant either.  

19.  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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20.  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.

21.  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 to extend time for his application, it is accordingly hereby dismissed.

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