HUSSAIN ARIF v. TORTURE CLAIMS APPEAL BOARD

HCAL 1911/2020

[2025] HKCFI 825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1911 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 / 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 50-year-old national of Pakistan who entered Hong Kong illegally on 1 February 2016 and surrendered to the Immigration Department 2 weeks later on 15 February 2016 when he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his neighbors over their land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Kakrot, Sarai Alamgir, Gujrat, Punjab, Pakistan. After leaving school he assisted in his father’s farming on his father’s farmland in his home village.

3.  Upon the passing of his father in 2001, the Applicant and his brother inherited their father’s farmland and continued to farm on the land.

4.  However, in 2011 they started to have some dispute with their neighbors who owned the adjacent land over some construction between their lands which escalated to a fight during which the Applicant and his brother were severely beaten that they were subsequently taken to the local hospital for medical treatment.

5.  Thereafter the dispute continued, and on another occasion in late 2015 that their neighbor fired gun shots at them and that the Applicant was hit on his left leg and had to be hospitalized for several days.

6.  Thereafter the Applicant became fearful for his life and moved his family to Jhelum to take shelter in his grandparents’ house, and on 28 January 2016 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 11 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 26 January 2018 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 a real and substantial risk of him being harmed or killed by his neighbors upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his neighbors to seriously harm or kill him, that in any event it was a private land dispute between him and his neighbors only 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 205 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 where it would be difficult if not impossible for his uncle and sons to locate him.

9.  On 7 February 2018 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 17 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 15 January 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his neighbors over their land dispute that caused him to leave his country to come to Hong Kong to seek protection and found that his such claim as not credible and fabricated by the Applicant that it concluded that he failed to establish that he will face any risk of harm from anyone upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 24 September 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge.

12.  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.

13.  As the last day of the three-month period for him to file his Form 86 fell on 15 April 2020, the Applicant was therefore more than 5 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 more than 5 months must be considered as very 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 15 January 2020 to his then reported address without being returned through the undelivered post, I am unable to see any good or valid reason for his such serious delay.

15.  As for the merits, if any, as noted above that the Applicant has also 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.

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

18.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.  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.

20.  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.

21.  As the Court has recently been informed by the Immigration Department that the Applicant has since been removed from Hong Kong, accordingly I direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with a 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