AHMAD IMTIAZ v. TORTURE CLAIMS APPEAL BOARD

HCAL 1698/2020

[2025] HKCFI 161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1698 OF 2020

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.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 21 November 2019 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Pakistan who entered Hong Kong illegally on 31 March 2009 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Peoples Party (“PPP”) as he supported their rival Pakistan Muslim League (Q)(“PML(Q)”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Autheyan, Tehsil Daska, District Sialkot, Pakistan. After leaving school he worked as a salesman in his home district, and supported PML(Q) regularly attended their local meetings and activities.

3.  One day in 2003 while working for his party at a polling station, the Applicant was attacked by a group of local PPP supporters, and thereafter they made some false charges against him to the police that he was arrested and detained by the police for interrogation during which he was tortured by them before eventually being released after several days without charge.

4.  Thereafter as those local PPP supporters continued to threaten and harass him, the Applicant therefore fled from his home district to Gujranwala to take shelter in an aunt’s place before moving on to Lahore and Karachi, and in March 2009 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon 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 31 October 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 17 February 2015 and a Notice of Further Decision dated 24 October 2017 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 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”).

6.  In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local PPP supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to harass him as common between supporters of rival political parties, 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”) 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 Lahore or Karachi where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

7.  The Applicant’s subsequent appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decisions were also dismissed by the Board respectively on 24 February 2017 and 21 November 2019 after hearing him in oral evidence and in answer to questions raised of his claim by the Adjudicator for the Board and upon finding no merits in his appeals and upon agreeing with and confirming the Director’s decisions of the availability of state protection and internal relocation to the Applicant upon his refoulement to Pakistan to negate any risk which may arise from his claim.

8.  On 21 August 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decisions, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just stated that he was not satisfied with the decisions but without putting forth any proper ground for his intended challenge.

9.  By then the Applicant was also out of time 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 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.

10.  As the last day of the three-month period for him to file his Form 86 as against the later decision of the Board fell on 21 February 2020, the Applicant was therefore more than 6 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 HKC 393.

11.  In the Applicant’s case, a delay of more than 6 months must be considered as substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 21 November 2019 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.

12.  As for the merits, if any, of his intended application, as noted above that 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 procedural unfairness in his process before the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

13.  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.

14.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real 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.  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.

16.  For all 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.

17.  Having recently been confirmed by the Immigration Department of the subsequent removal of the Applicant, I therefore direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with the sealed order to the Applicant in Pakistan.

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