MOHAMMED ABBAS ALIAS MOHAMMED v. TORTURE CLAIMS APPEAL BOARD

HCAL 2471/2020

[2022] HKCFI 3191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2471 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 (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 14 May 2020 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 53-year-old national of Pakistan who entered Hong Kong illegally on 2 February 2009 and was arrested by police on 3 months later on 6 May 2009. 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 his two cousins over some monetary disputes within the family, 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 Barakala, Gujranwala, Punjab, Pakistan where his father inherited 2 shops in 1998 from his eldest uncle’s estate and with which he and his siblings ran a business selling ladies jewelleries and cosmetic products.

3.  However, his 2 cousins were jealous of their business and raised issue over his father’s right to inherit those shops and demanded large sums of compensation from the Applicant’ family, and when the Applicant refused, they attacked him with wooden sticks and knives that he suffered cuts and bruises that required medical treatment in a nearby clinic.

4.  For the next 10 years the monetary dispute between the 2 families persisted but reached no solution, and eventually one day in 2008 the 2 cousins and their men approached the Applicant and threatened to kill him with their guns, and when the Applicant pleaded with them that he or his family had no money to pay any compensation, they then demanded that his family should raise the money by selling the shops, and threatened that next time when they returned, they would kill him if he still failed to come up with the money to pay for the compensation.

5.  As a result the Applicant became fearful for his life, and on 14 January 2009 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 4 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 7 November 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his cousins 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 his cousins to seriously harm or kill him during all those years with all the opportunities prior to his departure of the country and that nothing had since happened to his family, that in any event it was a private monetary dispute between 2 families 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 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 with working experience to move to other part of the country away from his home district in large cities such as Karachi where it would be difficult if not impossible for his cousins to locate him.

8.  On 15 November 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 19 December 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 May 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 evidence vague and inconsistent in the extreme that it doubted the credibility of his claim of fear of harm from his cousins that caused him to leave his country for Hong Kong which was further undermined by his failure to raise his claim upon his first arrival in Hong Kong until several months later after his arrest by the police, and that in any event it was a private monetary dispute between their 2 families without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by his cousins that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 21 December 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he does not agree with the decision but without putting forward any proper ground for his intended challenge.

11.  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 for extending the period within which the application shall be made.

12.  As the last day of the three-month period for him to file his Form 86 fell on 14 August 2020, the Applicant was therefore more than 4 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 eth putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of more than 4 months must be considered as very substantial and inordinate, for which the Applicant did not provide any explanation in his Form or affirmation, and as the record shows that the Board’s decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good or valid 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 Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 15 – 26 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 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.

17.  The fact is that it has also been established by both the Director and the Board in their respective 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 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.

18.  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.

19.  Furthermore, the Applicant recently on 7 September 2022 filed an affirmation requesting to withdraw his application as he no longer has any problem returning to his home country.

20.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation of no longer any problem for him to return to his home country, 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