KASHIF MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 887/2020

[2021] HKCFI 1524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 887 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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Pakistan who entered Hong Kong illegally on 11 April 2009 and was arrested by the police on 26 April 2009 for the offence of possession of dangerous drug and for which he was subsequently convicted and sentenced to prison for 17 months, during which he raised a torture claim with the Immigration Department later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the family of a friend who blamed the Applicant for his friend’s death.

2.  The Applicant was born and raised in Village Kot Khizri of Tehsile Wazirabad in Gujranwala, Pakistan. After leaving school he worked in the family’s hotel business in his home village.

3.  One day in December 2008 the police came to him for information about one of his friends Tauqeer who was suspected to have been involved in some robberies that occurred in the village, of which the Applicant did not provide any information to the police, but when later Tauqeer was shot dead by the police during an operation, his family suspected that the Applicant might have assisted the police with information about Tauqeer, and so the Applicant became concerned for his own safety by hiding in his sister’s place, and on 5 April 2009 he departed Pakistan for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 October 2014 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 1 April 2015 the Director of Immigration (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Tauqeer’s family upon his return to Pakistan as low due to the absence of any past ill-treatment from them, that his problem with them was a private personal dispute 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 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 parts of Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for Tauqeer’s family to locate him.

6.  On 14 April 2015 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 24 March 2016 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 25 January 2017 this appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board found the Applicant’s fear of harm or ill-treatment from Tauqeer’s family even on his own case is unlikely to materialize due to the absence of any such ill-treatment from them in the past prior to his departure of Pakistan, that in any event in the absence of any state or official involvement that state/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 areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds. 

8.  On 22 March 2017 the Director on his own initiative invited the Applicant 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”), and upon receiving and considering additional facts from the Applicant, the Director by a Notice of Further Decision dated 1 November 2017 rejected his BOR 2 claim after finding that even on the facts of his own case that his claim does not engage the BOR 2 ground.

9.  The Applicant did not lodge any appeal to the Board against this Further Decision of the Director, but instead on 13 May 2020 he filed a Form 86 for leave to apply for judicial review of the earlier 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 stated that he needed time to produce proof that his life would be in danger in his home country without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.  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 there is good reason for extending the period within which the application shall be made.

11.  Given the fact that the Applicant did already bring his appeal against the Director’s earlier decision of 1 April 2015 to the Board which would therefore render that decision no longer susceptible to judicial review, as held in by the Court of Appeal in Moshsin Ali [2018] HKCA 549, CACV 54/2018. 24 August 2018, I shall therefore treat the present application as his intended challenge against the Board’s decision of 25 January 2017, for which the last day of the three-month period for him to file his Form 86 would fall on 25 April 2017, and hence the Applicant was late by more than 3 years 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.

12.  In the Applicant’s case, a delay of more than 3 years must be considered as extremely substantial, for which he did not provide any explanation, and as the record confirms that the decision was sent on the same day to his then last reported address without being returned through undelivered post, I am unable to see any good or valid reason for his serious delay.

13.  As for the merits, if any, of the intended application, as noted above, the Applicant has not put forth any proper ground for his intended challenge, nor has he even up to now produced any further “proof” that his life would be in danger in his home country as he so claimed in his Form 86. As such 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 or merits in his intended application.     

14.  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.

15.  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 the Applicant’s 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.     

16.  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.

17.  Furthermore, the Applicant on 14 December 2020 filed an affirmation requesting to “close” his application but without providing any explanation or reason for his request.

18.  In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest request to “close” his application, I 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