SHABBIR FALAK v. TORTURE CLAIMS APPEAL BOARD

HCAL 183/2022

[2022] HKCFI 2433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 183 of 2022

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 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 18 June 2021 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 22-year-old national of Pakistan who entered Hong Kong illegally on 5 November 2019 and surrendered to the Immigration Department on 7 November 2019 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Muslim League (Q) (“PML(Q)”) for refusing to join their party. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mohalla Bakar Qasaban, Jalalpur Jatan, District Gujrat, Punjab, Pakistan. After leaving school he worked as a salesman, and followed his family’s tradition to support the political party Pakistan Muslim League (N) (“PML(N)”) regularly attended their local meetings and rallies.

3.  During the 2018 General Election, some local PML(Q) supporters approached the Applicant to join and vote for their party, but when he refused as he supported their rival PML(N), they then threatened to kill him if he did not change his mind soon.

4.  Shortly after the election was won by the PML(Q) which became the ruling party, those local supporters came to the Applicant and beat him with punches and kicks that he suffered cuts and bruises all over his body.

5.  After the attack the Applicant fled to Alamghar until late 2018 when he sneaked back to his home village to visit his family, during which he was spotted by the same group of PML(Q) supporters who proceeded to beat him again.

6.  After the last assault, the Applicant felt it was no longer safe to remain in Pakistan, and so he went to Islamabad, and in October 2019 he departed the country 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 30 March 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 15 June 2020 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those local PML(Q) supporters upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no real intention of them to specifically target the Applicant for harm other than to press him to join their party given the fact that he was just an ordinary 18-year old supporter of PML(N) with no official post in the party, that in any event in fact according to the relevant Country of Origin Information (“COI”) that PML(Q) did not win the 2018 General Election or become the ruling party as alleged by the Applicant, and that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that the relevant COI show that reasonable internal relocation alternatives are available in Pakistan with a large population of 233 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 young man with working experience to move to other part of the country away from his home district in large cities such as Karachi or Lahore where it would be difficult if not impossible for anyone to locate him.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not conduct any oral hearing and dealt with his appeal in his absence and on paper, and on 18 June 2021 it dismissed his appeal and also confirmed the decision of the Director.

10.  In its decision the Board did not take any issue with the credibility of the Applicant’s claim of threats and assaults suffered at the hands of those local PML(Q) supporters for refusing to join their party, that it found no evidence that he had been specifically targeted by the PML(Q) people given that he was just an ordinary PML(N) supporter without any official post in the party, and that in the absence of any official involvement that state/police protection would be available to the Applicant if needed upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 12 April 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) That the Director and the Board reached their decisions wrongly in assessing his non-refoulement claim in that their decisions were not fair or reasonable as required by the Wednesbury test that his right to life must be protected by criminal law from the extra-judicial killings that he may face if deported back to his home country;

(2) That the Director failed to give proper importance or weight to the presence of state acquiescence in his case that led to an unfair outcome of rejecting his non-refoulement claim that he was tortured at the behest of the state law officials and politicians that the state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) That the Adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account in assessing his claim;

(4) That the Adjudicator was procedurally improper and unfair when assessing whether to accept the explanations provided by the Applicant and unreasonably required him to respond to questions that he was not in position to respond;

(5) That the Adjudicator failed to take account the nexus of political parties and official corruption which exist in his home country thus making persecution effectively persecution by the State before reaching its decision which was a clear case of unfair attitude enough to render it void;

(6) That the Director failed to attain high standard of fairness required by the Wednesbury test in the decision when he failed to take into account the argument that corruption and incompetency in the administration in the Applicant’s home country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions that the decision should be considered unreasonable in the scope of public law; and

(7) That Adjudicator made a ruling to dismiss his appeal without an oral hearing which was against his right to have one for his appeal before the Board.

12.  By then the Applicant was seriously 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.

13.  As the last day of the three-month period for him to file his Form 86 fell on 18 September 2021, the Applicant was therefore some 7 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.

14.  In the Applicant’s case, a delay of 7 months must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his then reported address without being returned through undelivered post, and as he also failed to attend the hearing of his application without any explanation, I do not see any good reason for his serious delay.

15.  As for the merits, if any, of his intended appeal, those grounds or complaints of the Applicant as listed above are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they would apply to his case or how the Board or the Adjudicator had erred in the decision, or what relevancy were state acquiescence or extra-judicial killings to his claim, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI or to apply high standards of fairness in the assessment of his claim, while it is well established by the Court of Appeal that there is no absolute right to an oral hearing before the Board as long as high standards of fairness was applied in the proper exercise of its discretion not to take any issue of credibility of the Applicant’s claim as to threats and assaults suffered by him at the hands of those local PML(Q) supporters when it clearly and rightly found that both state protection and internal relocation were available to the Applicant to negate such risk that I do not find any of these bare assertions of the Applicant reasonably arguable for his intended challenge or any merits in his intended application.

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 fact is that it has also been correctly 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 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 such 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