AKHTAR HASSAN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2229/2018

[2021] HKCFI 3540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2229 of 2018

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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.

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 30 May 2018 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of Pakistan who entered Hong Kong illegally on 26 October 2015 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 on the basis that if he returned to Pakistan he would be harmed or killed by the local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Muttahida Qaumi Movement (“MQM”).  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Chakwal, Pakistan.  After leaving school he ran a store selling and repairing electrical items in his home district, and supported the political party MQM by assisting in posting their posters in the local neighborhood.

3.  However, he and his fellow MQM supporters often faced threats from rival PML(N) supporters, and after one incident in April 2015 when he and his fellow MQM supporters were assaulted with wooden sticks that the Applicant suffered injuries which required treatment at the local hospital, he became fearful for his safety and fled to Karachi to take shelter in a relative’s place, and on 22 October 2015 he departed Pakistan for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 31 August 2016 the Director of Immigration (“The 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”).

5.  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 those local PML(N) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that violent conflicts between supporters of rival political parties in Pakistan were common and that there was no evidence or reason for those PML(N) supporters to specifically target the Applicant for political persecution, 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 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 part of Pakistan away from his home district in large cities such as Karachi where he had stayed before without incidents and where it would be difficult if not impossible for those PML(N) supporters to locate him.

6.  By a Notice of Further Decision dated 23 March 2017 the Director also rejected the Applicant’s claim of risk of his absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”) being violated upon his return to Pakistan in the absence of any additional information or evidence from him in support of such claim.

7.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“The Board”) against the earlier decision of the Director, the notice of appeal which was filed on 12 September 2016, and for which he attended an oral hearing on 12 March 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 30 May 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to his involvement in MQM and the alleged attack by PML(N) supporters that it doubted the credibility of his claim of fear of harm for his departure from his home country to Hong Kong, and that in any event in the absence of any evidence of any official involvement that state/police protection would be available to him upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds. 

9.  On 12 October 2018 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 his life would still be in danger in his home country that he cannot return but without putting forth any proper ground for his intended challenge.

10.  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 date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the supplication shall be made.

11.  As the last day of the three-month period for him to file his Form 86 fell on 30 August 2018, the Applicant was therefore 6 weeks 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.

12.  In the Applicant’s case, a delay of 6 weeks must be considered as very substantial.  For which the Applicant explained at the hearing of his application that the decision arrived late in the mail when by then he was already out of time with his intended application, but he was unable to provide any further details such as the date when the decision arrived or documentary evidence such as the envelope which contained the decision showing the actual postmark.

13.  The record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and in the absence of any further details or documentary evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided 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 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.

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 12 – 13 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.  Furthermore, 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 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.  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.

19.  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 substantial 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