MUSHTAQ SHAHID v. TORTURE CLAIMS APPEAL BOARD

HCAL 2151/2018

[2022] HKCFI 2553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2151 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of documents only;          or
	consideration of 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 15 December 2017 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Pakistan who entered Hong Kong illegally on 5 December 2012 and was arrested by police on 17 January 2013 for illegal entry and undertaking unauthorized employment, for which he was subsequently convicted and sentenced to prison for 15 months during which he raised a non-refoulement claim with the Immigration Department on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle and cousin over a land dispute between the two families 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 Jattlan, Mirpur, Azad Kashmir, Pakistan. After leaving school he worked as a farmer, got married and raised a family with 2 children in his home village.

3.  After his grandfather passed away in 2005 or 2006, his father and his paternal uncle started to have dispute over the inheritance of his grandfather’s farmland of which his uncle had taken possession without sharing it with the Applicant’s father, and when his father pressed for its distribution, it led to a fight between the two families during which the Applicant was struck by his uncle and son with wooden sticks that he fell and lost consciousness, and was later taken to the local hospital for medical treatments.

4.  After the assault and as his uncle had made death threats against him if he continued to press the issue over the inheritance of his grandfather’s land, the Applicant became fearful for his life and fled to Rawalpindi, and in late November 2012 he departed Pakistan for China, and from there he sneaked into Hong Kong on 5 December 2012, and after his arrest by police on 17 January 2013 for illegal entry and undertaking unauthorized employment for which he was later convicted and sentenced to prison for 15 months, and upon his discharge from prison and was referred to the Immigration Department for deportation, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 29 March 2016 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 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”).

6.  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 uncle and cousin 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 uncle to seriously harm or kill the Applicant, that in any event it was a private family land dispute between the 2 families without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan 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 771,000 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 it would be difficult if not impossible for his uncle to locate him.

7.  On 2 June 2017 the Director on his own initiative in writing invited the Applicant to submit any 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 in the absence of any response from him, the Director by a Notice of Further Decision dated 10 July 2017 also rejected his BOR 2 claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

8.  Meanwhile the Applicant was in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal for which was filed on 11 April 2016, and for which he attended two oral hearings on 12 September 2017 and 3 October 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 15 December 2017 his appeal was dismissed by the Board which also confirmed both decisions of the Director.

9.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his uncle that caused him to leave his country for Hong Kong, which was further undermined by his failure to raise it upon his first arrival in Hong Kong until his subsequent arrest by police for undertaking unauthorized employment, and that in any event it was a private land dispute between his family and his uncle without any 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 part of the country without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 8 October 2018 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 in which he just stated that he rejects the decision as the Board disregarded his dangerous situation in his home country but without providing any details or particulars as to how it did so or any proper ground for his intended challenge, nor did he request any oral hearing for his application.

11.  By then the Applicant was also 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 date 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 the Applicant to file his Form 86 fell on 15 March 2018, he was therefore almost 7 months late with his present 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.

13.  In the Applicant’s case, a delay of almost 7 months must be considered as very substantial and inordinate, but 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 last reported address without being returned through undelivered post, I do not see any good or valid reason for his such serious delay.

14.  As for the merits of his intended application, as noted above the Applicant has also failed to put forth any proper or reasonably arguable basis 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.  The fact is that it has been correctly established by both the Director and the Board in their respective decisions 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.

16.  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 their decisions or any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s non-refoulement claim.

17.  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 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