IMRAN KHAN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 773/2021

[2021] HKCFI 1832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 773 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 17 October 2019 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Pakistan who entered Hong Kong illegally on 29 November 2007 and was arrested by police on 31 January 2008. 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 the friends of a person with whom he had a fight, and after it 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 Attock District, Punjab, Pakistan. After leaving school he worked in a restaurant in Lahore as a cook and waiter.

3.  One day in November 2007 he delivered a take-away order to a house where his employer was entertaining some friends, and was asked by his employer to join them drinking alcohol during which his employer’s friends started to act rowdy with him, and when the Applicant struggled forcefully he accidentally stabbed one of the men and fled from the scene to run back to his home.

4.  On the next day when he was informed by a co-worker that the police were looking for him, he then fled to Rawalpindi, but when he later heard that the men whom he stabbed had died from his wounds and that his friends were seeking revenge against the Applicant while the police were also looking for him everywhere, the Applicant therefore departed Pakistan on 25 November 2007 and flew to China, and from there he later sneaked into Hong Kong and raised his torture claim, and when it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 8 April 2016 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any scheduled screening interview before an immigration officer due to alleged medical reasons.  

5.  Whilst being released on recognizance pending determination of his claim, the Applicant had been arrested by police on several occasions for various offences including theft, possession of dangerous drugs and attempted robbery, and for which he had been sentenced to prisons for various terms between 4 months and 2 years.     

6.  By a Notice of Decision dated 2 September 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then remaining applicable grounds other than torture risk including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of under 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”).

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 the victim’s friends or police upon his return to Pakistan as low due to the absence of any past ill-treatment from them, that there is no reliable evidence apart from his bare assertions that the victim’s friends or the police were looking for him other than hearsay and that he was able to leave Pakistan with his passport without any problem, that if indeed he had committed a crime that he was a fugitive of justice and not entitled to non-refoulement protection, that in any event his dispute with the victim’s friends was a private personal matter 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”) shows 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 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 parts of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for his perceived enemies to locate him.

8.  By a Notice of Further Decision dated 26 July 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 (“Board”) against the earlier decision of the Director, the notice of which was filed on 12 September 2016, and for which he attended an oral hearing on 12 April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 17 October 2019 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found serious inconsistencies and discrepancies in the Applicant’s evidence that it did not consider him to be a credible witness and concluded that he had fabricated and concocted his evidence to advance a claim for non-refoulement protection, that he was not a victim of any threats of revenge or police prosecution, and that he would not be at any risk of harm from anyone upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.  

11.  On 26 May 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, and in his supporting affirmation of the same date he merely repeated his claim that he still has problem in his home country that it would be dangerous for him to return but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

12.  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.

13.  As the last day of the three-month period for him to file his Form 86 fell on 17 January 2020, the Applicant was therefore more than 16 months 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.

14.  In the Applicant’s case, a delay of more than 16 months must be considered as extremely substantial and excessive, 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 such serious delay.

15.  As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth 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 Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

16.  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.

17.  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 46 – 55 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 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 to challenge the finding of the Board.  

18.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.     

19.  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.

20.  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