ARSHAD MAHMOOD v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 526/2021

[2021] HKCFI 1611

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 526 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;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 24 January 2020 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of Pakistan who entered Hong Kong illegally on 17 March 2007 and was arrested by the police on 8 April 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by a fellow villager over some renting dispute with his family in his home village, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Near Masjid, Qudus Ahley Hadees, Mohallah Islampura, Tandlianwala, District Faisalabad, Pakistan. After leaving school he did not work and relied on his father who had rented out 3 shops to a fellow villager Zulfiqar for income.

3.  In late 2005 the Applicant’s father decided not to rent his shops to Zulfiqar and asked for their possession, but when Zulfiqar refused, the Applicant’s father sought help from the village administrator and was eventually able to recover possession of those shops from Zulfiqar in early 2006 who was furious and threatened the Applicant’s father that he would do something against his family.

4.  Several weeks later the Applicant was ambushed by Zulfiqar’s sons in the village when he was beaten by them with hockey sticks that he suffered injuries to his head and was later taken to the hospital for medical treatment. 

5.  After the assault the Applicant became fearful for his life, and so he departed Pakistan in April 2006 for China, and from there he later sneaked into Hong Kong, and upon his arrest his raised his torture claim with the Immigration Department, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 1 June 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 26 July 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 found no substantial grounds for believing that he would be in danger of being harmed or killed by Zulfiqar or his sons upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that it was a private dispute between Zulfiqar and the Applicant’s family which had occurred many years ago that it is doubtful that Zulfiqar would still have any adverse interest in the Applicant after all these years, that in any event 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 204 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 to move to other parts of Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for Zulfiqar to locate him.

8.  On 6 August 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend an oral hearing scheduled on 18 November 2019 before the Board, and in rejecting the Applicant’s explanation for his failure to attend the hearing the Board proceeded to deal with his appeal in his absence and on paper. On 24 January 2020 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 explanation that he failed to attend the scheduled hearing for his appeal due to a protest incident in Yuen Long where he was then residing without further details or any documentary evidence such as news reports to corroborate his bare assertion as unjustifiable and unacceptable, that based on the material and information previously provided by him for his claim that there is no reliable evidence that Zulfiqar had ever made any threats against him or had specifically targeted him, that Zulfiqar had since not done anything against any members of his family, and that in any event with state/police protection 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 Zulfiqar or his sons that his claim for non-refoulement protection failed on all applicable grounds.   

10.  On 14 April 2021 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely stated that he does not want to go back to his home country but without putting forward any proper ground for his intended application, nor did he request any oral hearing for his application.

11.  The Applicant was by then also serious 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 24 April 2020, he was therefore almost one year 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 HKCA 393.

13.  In the Applicant’s case, a delay of almost one year must be considered as extremely substantial, for which he did not provide any explanation in his Form or supporting 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 do not see any good reason for his serious delay.

14.  As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forward 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 Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any merits in his intended application.

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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.     

17.  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.

18.  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