MUHAMMAD IMRAN KHAN v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of Pakistan who arrived in Hong Kong on 24 June 2004 as a visitor under a different identity with permission to remain up to 27 July 2004 as extended when he did not depart and instead overstayed, and was arrested by police almost 3 years later on 10 May 2007. After he was referred to the Immigration Department for investigation, he revealed his real identity and raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his former girlfriend’s family who disapproved of their relationship and/or by the police over some false criminal charges brought against him. He was then released on recognizance pending the determination of his claim, but that he subsequently failed to report on his recognizance and was re-arrested on 29 July 2013 for which he was convicted and sentenced to prison for one month, and upon his discharge from prison he was allowed to proceed with his non-refoulement claim.

2.  The Applicant was born and raised in Village Bachogi, Maja, Tahsil District Kasur, Punjab, Pakistan. After leaving school he worked in the factory before running his own grocery store in his home district to make his living.

3.  In 2000 he started dating a girl from his home village, but her family in particularly her father disapproved of their relationship due to their different religions, and one day in 2003 her father threatened to kill the Applicant if he failed to heed his demand to end their relationship.

4.  About one month later the Applicant was attacked by some unknown men who then warned him to leave the village to stay away from his girlfriend or else they would kill him next time if they still saw him in the village.

5.  Several weeks thereafter his girlfriend’s parents forced her to marry another man against her wish, and later when her husband discovered her past relationship with the Applicant and was displeased that he subsequently divorced her much to the anger of her parents who blamed the Applicant for the divorce.

6.  Shortly thereafter one evening while the Applicant was chatting with a friend in a park, a gun shot was fired from somewhere that his friend was hit in the stomach and was brought by the Applicant to the hospital where his friend was hospitalized for 8 days for medical treatments of his gunshot wound.

7.  As a result the Applicant suspected that the gun shot was meant to be for him arranged by his girlfriend’s father, and as he became fearful for his life, the Applicant therefore fled from his home village for Islamabad where he stayed for one month before returning to his home village.

8.  Two weeks later one day the Applicant was taken by the police for investigation of a robbery occurred earlier in the village, and was only released later of the day after his family had paid a bribe to the police.

9.  Shortly thereafter the Applicant fled to Lahore and Karachi, and then in March 2004 he departed Pakistan for Hong Kong under a different identity and stayed for 2 weeks before returning to Pakistan.

10.  Several months later the police again brought the Applicant to the station for investigation of another robber that occurred the day before, during which he was slapped and punched by the police, and was released later on the same day after his family had again paid bribe money to the police.       

11.  As the Applicant was still fearful of threats from his former girlfriend’s family as well as the police over those robbery charges, he therefore departed Pakistan again on 24 June 2004 for Hong Kong under his real identity and subsequently overstayed, and almost 3 years later on 12 May 2007 when he was arrested by police that he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 26 May 2014 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any of the scheduled screening interviews before an immigration officer due to alleged medical issues.             

12.  By a Notice of Decision dated 27 March 2015 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”).

13.  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 former girlfriend’s family or the police upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from either of them, that there is no evidence of any real intention of his former girlfriend’s family to seriously harm or kill him or any reason for them to do so after all these years since he left the country in 2004, that in any event it was a private dispute between him and his former girlfriend’s family only 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 areas of the country away from his home district in large cities such as Islamabad where it would be difficult if not impossible for his former girlfriend’s family to locate him, while there is also no reliable evidence of any adverse interest of the Pakistani police or authorities in him given the fact that he had never been charged and that he was able to leave his country twice without any problem that it is not accepted that he will face any risk of prosecution or harm from the police upon his return to Pakistan either.

14.  On 9 April 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing on 17 March 2016 before the Board without any explanation that the Board proceeded to deal with his claim and appeal on paper based on all the materials and information earlier provided by him to the Director and available in the hearing bundle before the Board. On 23 December 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

15.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his former girlfriend’s family which disapproved of their relationship or the police that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until almost 3 years later and only after he was arrested by the police, that even if his such claim of fear of harm from his former girlfriend’s family were true that it arose from some private dispute between them only without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds, while there was also no evidence of any adverse interest of the Pakistani police in him and that he was able to leave the country twice and return once without any problem that it is not accepted that he will face any risk of being arrested or prosecuted by the police upon his return to Pakistan.

16.  Meanwhile on 15 March 2017 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any reply or response from the Applicant, the Director by a Notice of Further Decision dated 19 April 2017 also rejected his 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.

17.  The Applicant on 16 May 2017 again lodged an appeal to the Board against this Further Decision of the Director, but as it was deemed outside the 14-days period within which for him to file his notice of appeal under Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance as the law then stood, 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[2] dated  12 May 2020 the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that it was some 10 days late, that such delay was significant, that for which the Applicant had failed to provide any explanation, and that there were no other relevant matters within its knowledge that may amount to special circumstances which would make it unjust not to allow the late filing of his appeal.             

18.  On 28 September 2020 the Applicant filed his Form 86 for leave to apply for judicial review not just this second decision of the Board but also its earlier decision of 23 December 2016, and put forward the following grounds for his intended challenge:

(1)   That the Board failed to make sufficient enquires before finalizing the determination to reject his non-refoulement claim;

(2)   That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)   That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)   That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)   That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6)   That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7)   That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

19.  By then the Applicant was however clearly out of time with his application against the Board’s decision at least as regard the earlier one of 23 December 2016, 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

20.  As the last day of the three-month period for him to file his Form 86 as against this earlier decision of the Board fell on 23 March 2017, the Applicant was therefore some 3 ½ years 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.

21.  In the Applicant’s case, a delay of 3 ½ years must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, nor did he subsequently attend the scheduled hearing of his leave application without any explanation, and as the record shows that this earlier decision of the Board was sent on the same day of 23 December 2016 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.      

22.  As for the merits, if any, of his intended application as regard either decisions of the Board, those grounds put forward by the Applicant are all just some bare and vague assertions containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in either decisions, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what evidence is there to suggest that the Applicant had ever been tortured by law enforcement agencies or politicians when on the factual basis of even his own case that it was essentially a private dispute between him and his former girlfriend’s family only without any official involvement or political element, while there was as found by both the Director and the Board in their decisions of no reliable evidence of any adverse interest of the Pakistani police or authorities in the Applicant over any charges as alleged by him. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge of either decisions of the Board or any merits in his late application as regard its earlier decision.

23.  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.

24.  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 its earlier decision when he failed to attend the scheduled hearing of his application without any explanation, and that having already done so in that decision that the Board was in my view also correct in refusing the late filing of his appeal as regard the further decision of the Director in the absence of any special circumstances which might make it unjust not to allow such late filing of the Applicant’s appeal as regard his BOR 2 Claim. As such, and in the absence of any error of law or procedural unfairness in his appeals process before the Board or in its either decisions being clearly and properly identified by the Applicant, and that on the factual basis of even his own case that his claim simply did not engage the BOR 2 ground in its limited scope, I do not find any reasonably arguable basis or merits to challenge the findings of the Board in either of its decisions.

25.  Furthermore, the fact is that it has also been established by the Director in his earlier decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also agreed and 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.                

26.  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 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 in refusing the late filing of his appeal under the BOR 2 ground.

27.  In the premises, as I am for the given reasons 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 or justification for his serious delay with his application as regard the Board’s earlier decision on all the applicable grounds other than BOR 2 Risk, I refuse to grant leave and accordingly dismiss his application as regard both decisions of the Board.

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