RAZA KAMRAN AHMED v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 416/2020

[2021] HKCFI 3365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 416 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;

1.   The Notice of application for leave to apply for Judicial Review be amended to include the Torture Claims Appeal Board’s decision dated 1 February 2017;

2.   Application for leave to apply for Judicial Review be re-instated; and

3.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The applicant was from Pakistan.  He entered Hong Kong on 16/8/2013.  He was allowed to stay until 15/9/2013.  He was arrested by the police on 25/9/2013 for overstaying in Hong Kong.  He filed the present non-refoulement claim on 2/10/2013.

2.  From 30/9/2015 to 24/3/2016, the Director had arranged 5 screening interviews for the applicant.  All of them could not be completed as the applicant raised various reasons for adjournment[1]. He did not attend the last screening interview on 24/3/2016 claiming that he was sick.  However, he was unable to submit any medical proof.  The Director referred the applicant’s request to DLS again.  On 26/4/2016, the DLS informed the Director that the applicant declined their service.  The Director decided to assess his claim on the existing information.[2]

3.  His claim was rejected by the Director on 5/7/2016[3] and 25/4/2017[4].  His appeal was dismissed by the TCAB on 1/2/2017 and 22/1/2020.[5]

4.  He filed a leave application for judicial review on 16/3/2020.  He sought to review the TCAB decision dated 22/1/2020 and the two decisions of the Director dated 5/7/2016 and 25/4/2017.  He did not seek to judicial review the earlier TCAB decision dated 1/2/2017.  This court thinks that it is more meaningful to consider both TCAB decisions in this leave application.  This court would therefore amend the Form 86 to include the TCAB decision dated 1/2/2017. [6]

5.  Meanwhile, he applied to withdraw the leave application on 3/2/2021. He stated in his supporting affirmation that his fear had been resolved.  He did not have any problem in Pakistan.  Deputy Judge CP Pang granted him leave for withdrawal on 23/2/2021.

6.  On 25/5/2021, he applied to this court for re-instatement of the leave application.  He stated that his family failed to solve the problem.  His enemies were still looking for him.  His life was still in danger.  He could not return to Pakistan.

7.  In the oral hearing on 6/9/2021, he informed this court that there was still fighting between PTI and PPP[7]. It was not safe for him to return.

8.  This court allowed the applicant to re-instate his leave application and considered his leave application below.

Background

9.  The applicant was born on 11/12/1980 in Punjab, Pakistan.[8]  He had education for 6 years.  He was an electrician (2003-2005) and had operated a Haji Chicken Shop (2006-2007).  He and his family supported the PPP.  His mother and brothers were in Pakistan.  He voted for “H” who was a “MPA” (member of provincial assembly).  His close friends (“K”, “A” and “M”) were active in the PPP.[9]  However, he was not.

1^st incident in 2004

10.  One day in 2004, he had an argument and fought with Gujjar (“G”) because the latter teased his female cousin.  It developed into a fight between G’s group and his group when they met on the street the next day.  During that fight, he grabbed a wooden rod and hit “G” and another man.  They fell unconscious.

11.  On knowing that the police had started investigation, he and his friends went to hide in village Tromandi. [10]  It was the home of “K’s” relatives.  They stayed there for one week.  Meanwhile, the police came to his home.  They interrogated his elder brother on his whereabouts.  They assaulted his elder brother.  He and his friends then fled to Lahore.  They hid in the place of “M’s” aunt for 3 weeks.

12.  The incident was eventually settled by the counsellor of his home area. “G’s” group agreed to withdraw the police complaint.

2^nd incident in 2004

13.  About a week later,he was attacked by “G’s” group in his home district.  He was hit with an iron rod and kicked.  He was unconscious for 2 to 4 weeks.  He needed to have a plaster on his right leg.  He had a fracture skull and needed 19 stitches.  He stayed in the hospital for over a month.  He resumed work about 3 months after his discharge.

14.  While he was hospitalized, his elder brother told him that his 3 friends had taken revenge for him.  They shot “G” by his leg and stomach.  His friends then fled.  They were not arrested by the police.

15.  One week after his discharge from the hospital, he signed some documents in the Nekapura police station to withdraw his complaint against “G”. Nothing eventful happened afterwards until 2007.

The incidents in 2007

16.  One day in 2007, “K” visited his Haji Chicken shop.  “K” told the applicant that he had killed a man.  That man illegally occupied a plot of land in Chuwinda village in Sialkot.  “K” was in the business of recovering land illegally occupied.

17.  He was later taken to the Nekapura police station.  The police asked about “K”.  They assaulted and detained him for about 2 days.  They threatened to link him with the murder.  Eventually, “H”—the MPA—paid 20,000 rupees as guarantee for his release.  He was given painkiller by a doctor in a local clinic.  He had not reported the assault to another police station.

18.  A few days later, two officers, who had assaulted him during his detention, came to his Haji Chicken shop.  He refused to buy them drinks.  They were angry.  The next day, he decided to close his Haji Chicken shop for good.

19.  In the same evening, he and his two friends (“A and M”) decided to take revenge on the two officers.  They stopped the two officers at a spot of their patrol route.  His friend “A” slapped one officer during the argument. At this juncture, his friend “K” arrived with 3 others in a car.  They carried guns. “K” and his group assaulted the two officers and took away their guns. All of them then fled to the village where “H” lived.

20.  That night, the police detained and questioned his brother.  They assaulted his brother.

21.  Two days later, all parties appeared in court.  “H” agreed to pay each officer 50,000 rupees.  The officers agreed to withdraw the case against the applicant.

22.  Since then, he left home to work for “H”.  He was paid some pocket money and daily expenses but no fixed salary.  He also worked for “K” in recovering illegally occupied land.

The election campaign in 2007-2008

23.  By the end of 2007, he assisted “H” in the election campaign.  The election was due to be held in May 2018.  On 27/12/2007, the then president of PPP was assassinated. The PPP suspected that the PML(N)[11] was behind the plot.  The PPP wanted to disrupt the election. He was ordered to attack all election offices.

24.  One day in April 2008, there was a confrontation between PPP and PML(N) supporters.  He and his group exchanged gun fires with the PML(N) supporters at their election hall injuring a few people.

25.  Three days later, the PML(N) supporters disrupted a gathering organized by “H”. They exchanged gun fires with the PPP supporters.  The applicant’s friends and some supporters of PML(N) were injured.  Each party filed a report against the others.  The reports were subsequently withdrawn as both parties had resolved the conflict.  His friends “K” and “M” had gone hiding since then.

26.  Another day in April 2008, his friend “A” shot at a PML(N) supporter who was involved in the incident earlier on.  After that, “H” told them to keep a low profile.

27.  On the election day, the PML(N) paid a higher price to attract voters for the party.  He and his friends were sent by “H” to settle the matter.  They had a fight with the supporters of PML(N).  The fight stopped when the Pakistan Rangers arrived.

28.  There was another fight after the election in which he was involved.  However, “H” managed to secure his release.  He was assaulted by the police during the detention.

29.  Subsequently, the PPP won the election and remained the ruling party but “H” lost his MPA seat in Sialkot.

30.  In 2010, he assisted “K” in recovering land.  During the incident hostile parties shot at each other causing injuries.  The police were alerted.  It was however settled by “H”.

The election in 2013

31.  Before the election, he and his friends were involved in shootings, they killed several PML(N) supporters.  They took refuge at the place of “K’s” friend.

32.  On 11/5/2013, the PML(N) won the election.  It became the ruling party.  He and others were angry at the result and fired at the supporters of PML(N) at their election hall. They then hid at a friend’s place.

33.  Two days later, “K” went out to meet two PPP members.  The two PPP members were later found dead.  “K” never returned. Later on one day, he and his friends went to Akhtar’s place to look for “K”.  Akhtar represented PML(N) and defeated “H” in the election of the MPA seat.  During the confrontation, they opened fire and killed Akhtar’s men.  Later that night, the police raided their hiding place, he managed to escape.  He dislocated his ankle during the escape.

34.  He and his friends escaped to Khanpur City and hid at a friend’s place.  “H” supported them financially during this time.  He got treatment and recovered in 2 weeks.    Later, “H” informed him by phone that the police had issued a shoot-to-kill order against him and his friends.

35.  He had applied his passport in 2012.  In May 2013, he decided to leave Pakistan. “H” arranged the visa to Hong Kong for him.  “H” also arranged his friend “A” to go to Dubai and “M” to Malaysia.

36.  “H” paid 400,000 rupees to the agent for arranging him to go to Hong Kong.  He left Pakistan without any problem in August 2013.

37.  He had not contacted anyone in Pakistan after he came to Hong Kong.  He feared that the police would kill him.  He would also be killed by the supporters of PML(N) or Akhtar if he returned.

The Decision of the Director

38.  The Director found that there was no substantial ground to believe that there was real risk of harm.  The reasons were as follows:

(a)   The applicant asserted that he supported the PPP since he was young.  He also assisted “H” in the election in 2008 and 2013.  He however could not recall the full names of the first and present chairmen of the PPP.  He could not draw the flag of PPP correctly.  He did not know the year in which PPP was founded.

(b)   According to the Election Commission and members’ directory of the MPA of Punjab, a PPP candidate (“Tahir M Hundli”) won the election of the MPA seat in Sialkot in 2008, whereas, Khush Akhtar Subhani had lost.  In 2013, there was no such candidate named Khush Akhtar Subhani in the election.  This was inconsistent with the evidence of the applicant.

(c)   Given the information above, the Director did not accept that he and his friends were involved in serious clashes arising from the elections.  The applicant was only a supporter of the PPP with no official post.  It was unlikely that he would post any adverse impact on the PML(N) or Akhtar.  There was no reason for them to target him.

(d)   The applicant had not sustained any severe injuries during all the conflicts with Akhtar and the PML(N) supporters.  The ill-treatment, if existed at all, could not reach a minimum level of severity.

(e)   The conflicts occurred about 3 years ago.  “H” had changed allegiance to another party.  It was unlikely that Akhtar and the PML(N) would still mobilize huge resources to locate him. The hostility should have decreased with the lapse of time.

(f)    The evidence did not support that he was in serious conflict with supporters of PML(N) because of the elections.  The shoot-to-kill order was hearsay from “H”.  Its reliability was doubtful.  The applicant had never been arrested in May to August 2013.  He encountered no serious problem while leaving Pakistan.  All these showed that there was no real risk of harm as he asserted.

(g)   According to the COI from Canada, the PISCES[12] was in use since 2007, his smooth departure from Pakistan showed that he was not targeted by the authorities.  This contradicted his explanation that the computer systems were not connected in 2013.

(h)   The applicant was wanted for having committed some criminal offences.  There was no evidence that he would not be treated fairly in the investigation.  There was no evidence that he would be ill-treated by the police.

(i)     Even accepting that he might have been ill-treated in 2007 and 2008, there was no evidence that he would be ill-treated if he returned to Pakistan in future.  The police had plenty of opportunities to do so between 2008-2013 if they wanted to do so.

(j)     There was no involvement of any public official. There was no instigation, consent or acquiesce by any State authorities. The applicant had not reported the conflicts with Akhtar and PML(N) to the police. There was no evidence that the authorities were unable or unwilling to enforce the law.

(k)   The Director had considered various COI.  The Director accepted that there were problems of corruption, abuse of human rights, ineffective police investigation and political manipulation.  On the other hand, the Director noted some ongoing reforms with positive results.  The DPSPCC [13] were established to tackle abuse of police power. Individuals might petition the courts for human rights violations.  The Ombudsman was responsible for investigating abuse of power and maladministration.  In all, the Director was satisfied that reasonable State protection was available.

(l)     The law in Pakistan allowed internal relocation. Karachi, Islamabad and Khanpur were possible options.  Pakistan was a large country.  It would be difficult for the PML(N) supporters to locate him.  The COI showed that he would be entitled to a fair trial.  The applicant was young and with working experience.  It was not unreasonable for him to relocate.

39.  Given the above, the Director dismissed his claim on all grounds.

The Decision of TCAB

The appeal against the Director’s decision dated 5/7/2016

40.  The applicant filed a notice of appeal on 8/8/2016, he was more than 2 weeks out of time.

41.  In section 5 of the Notice of Appeal, the applicant explained,

“I do hereby confirm that I did not receive appeal documents on my postal address today (8/8/2016). My case officer provided me such documents by hand at Tok (sic) Kwa Wan Immigration office.”

42.  The adjudicator was not satisfied with the above explanation.  He refused to grant extension of time for filing the notice of appeal. The reasons were as follows:

(a)   The statement did not specify whether he had given the correct address to the Director.

(b)   Even if the address was correct, there was no mention how often he had checked his letter box.

(c)   There was no explanation about the delay of 2 weeks beyond the deadline date of 19/7/2016.

43.  In the addendum to his decision, the adjudicator nevertheless considered the merits of the claim.  He concluded that the appeal was of no merit on the following grounds:

(a)   The 2 incidents of conflict with “G” had been settled. The incidents occurred 13 years ago, there was no further risk of harm from “G”. [14]

(b)   As to the incident concerning “K” and the assault of the police officers, the matter was settled by “H”.  There was no problem anymore. [15]

(c)   In all other conflicts in connection with the election in 2008 and 2013, the applicant and his friends had either initiated the conflicts or participated in mutual attacks.  The applicant failed to show that he was targeted for torture, CIDTP or persecution. He was targeted by the police as he had allegedly committed serious offences.

(d)   The applicant had not suffered severe injury or serious harm or serious violation of human rights.[16]

(e)   The shoot-to-kill order was a bare assertion from “H”.  The adjudicator doubted its reliability.  The incident occurred in 2013, the adjudicator was not convinced that the applicant would be killed ‘cold blooded” by the police given the time lapse and even unarmed if he was arrested in future. [17]

(f)    The applicant was a person fleeing from justice.  He was not entitled to non-refoulement protection.

44.  The adjudicator refused late filing on 1/2/2017.

The appeal against the Director’s decision dated 25/4/2017

45.  The Director invited the applicant to submit further information on all grounds including BOR 2.  The applicant failed to submit any information.  The Director dismissed the claim on BOR 2 based on existing information on 25/4/2017.

46.  The applicant filed a notice of appeal on 30/6/2017, he was about 7 weeks out of time.  He alleged that he did not receive the Director’s decision or receive any phone call.  He was not informed in time to file an appeal.

47.  The adjudicator refused to extend time for filing the notice of appeal on the following grounds:

(a)   The Director had delivered the decision to the DLS on 25/4/2017.  The applicant should have received the decision around 25/4/2017.  There was no explanation as to the delay of more than 1.5 months.

(b)   There was no new information in relation to the BOR 2 risk.

(c)   There was no merit in his claim as analysed before.  The appeal had no prospect of success.

48.  The adjudicator refused late filing of the notice of appeal on 22/1/2020.

Judicial Review

TCAB Decision dated 1/2/2017

49.  The applicant filed the leave application for judicial review on 16/3/2020. In his Form 86, he did not seek to challenge the TCAB decision dated 1/2/2017.[18]  For the reasons already given above, this court would also deal with this TCAB decision as follows:

(a)   The Decision of the Director was dated 5/7/2016.  The applicant was out of time for more than 2 weeks in filing the notice of appeal.  The adjudicator pointed out that the applicant had not explained satisfactorily for submitting the notice of appeal until 8/8/2016.

(b)   According to the applicant, an Immigration Officer provided the ‘appeal documents’ to him by hand at To Kwa Wan Immigration Office. By ‘appeal documents’, this court takes it that he must mean the Decision of the Director dated 5/7/2016.  The applicant did not mention when he received the ‘appeal documents’ from the Immigration Department.  According to his Form 8, he was supposed to report to the Immigration Department every 2 weeks on a Monday.  In addition, he did not explain the events after he received the ‘appeal documents’ to the date he filed the notice—8/8/2016.  This is important as an applicant must explain the whole period of the delay.

(c)   The adjudicator had analyzed the evidence. He found that there was no risk of harm.  There was no merit in the appeal.  I agree with his conclusion.[19]

(d)   According to the court file, the Decision of the Director dated 5/7/2016 was sent to his then current address at ‘91 Fung Wa Street, Sham Shui Po’.  However, the correct address should be ’91 Fuk Wa Street, Sham Shui Po’ which is the same address in the Form 86 dated 16/3/2020.  It was also the same address in his recognizance form (“Form 8”).  However, this error in the address may not be detrimental to delivery as all other particulars of the address was correct.

(e)   The applicant mentioned in paragraph 19 of his affirmation dated 16/3/2020 in support of the leave application that “The Notice of Further Decision had issued me without the language assistance or any translation through a mail. I did not understand what the Notice of Further Decision is.…Previously, Notice of Decision had issued me through the Duty Lawyer Service and an interpreter was arrange so I was able to understand that my claim has rejected. (sic)…”

(f)    This should also be read together with paragraph 28 in the same affirmation, “…To the best of my knowledge the Duty Lawyer Service stopped representing me earlier before issue the Notice of Decision because the Duty Lawyer Service believed there are no merits for appeal at the Torture Claims Appeal Board.  However, at that time BOR2 was not a ground and therefore the Duty Lawyer Service could not have assessed my case based on merits.  The Duty Lawyer Service should continue to represent me under such circumstance. (sic)”.

(g)   The applicant wrote to this court in a letter dated 18/6/2021, in paragraph 1 on page 3, he stated that the decision of his non-refoulement claim dated 5/7/2016 was served on him before the deadline of appeal to the TCAB.  He did not know what to do as he was not educated.  This contradicted his explanation in his notice of appeal to the TCAB (see (b) above).

(h)   From the paragraphs (e) and (f) above, the ‘Notice of Decision’ must be the Decision of the Director dated 5/7/2016.  The applicant admitted that it was served on him. He also mentioned that the decision was explained to him by the DLS.  He was advised there was no merit to appeal.  This court thinks that he must also be aware of the 14-day-time limit for filing the notice of appeal.

50.  While the applicant had not raised the problems of language and legal representation as he did in relation to the further decision of the Director below, I do bear those problems in mind in considering the leave application.

51.  I agree that there was no merit in the intended appeal.  The explanation on late filing by the applicant was not satisfactory.  It was not unfair or unjust to disallow the late filing of the Notice of Appeal.  The adjudicator was correct to refuse extension of time despite paragraph (d) above.

TCAB Decision dated 22/1/2020

52.  In his affirmation in support of the leave application dated 16/3/2020, he raised several points concerning mainly the further decision of the Director dated 25/4/2017 in which the Director rejected the ground on BOR 2 (“further decision”). They are discussed as follows:

(a)   He had no legal representation in processing the appeal of the further decision.

(i)  It is well settled that a claimant under the USM does not have an absolute right to free legal representation at all stages of the proceedings.[20]

(ii)  The applicant had legal assistance from DLS in preparing his NCF to the Director.  It was supposed to be all material facts in support of his claim.[21] The applicant had not indicated that he had substantial change of his case in his notice of appeal. In fact, it was nothing new according to the adjudicator.[22]  Given the circumstances, I do not find any irregularity even though he was not represented in the preparation of the appeal to the TCAB.

(iii)  The DLS had informed the Director, on 2/3/2016 and 26/4/2016, that the applicant had declined their services.[23]  It was the applicant’s own choice not to have a duty lawyer.

(b)   He had no language assistance in processing the appeal.

(i)  The applicant should seek language assistance according to his resources. There is no duty on the part of the Director to supply translated documents.

(ii)  In all screening interviews and TCAB hearings, there would be interpretation services.

(iii)  According to the Director, the applicant attended the Immigration office on 31/3/2016 with a Pakistani Punjabi Interpreter.  He wrote a letter to explain his absence from the screening interview on 24/3/2016.  This demonstrated that he could have language assistance.[24]

(iv)  Both the Form 86 and the affirmation for the leave application were typewritten in English.  They are reasonably comprehensible.  This shows that the applicant was able to find language assistance.

(v)  The applicant wrote to this court in English on 3/2/2021, 25/5/2021 and 18/6/2021.  He was able to find language assistance.

(c)   He did not receive the letter from the Director to submit additional facts in relation to BOR 2.  He did not receive the “further decision”.  He did not understand the “further decision”.  There was no translation.

(i)  The “further decision” was sent to the address at “91 Fuk Wa Street, Sham Shui Po”. It was the same address in the Form 86 and Form 8.  He lived at the same address latest until 16/3/2020.  Under normal circumstances, it should have reached the applicant by mail.

(ii)  Although the letter inviting for further information on BOR 2 is not in the court file, I can safely assume that it was sent by the Director to the same address above.

(iii)  The applicant asserted that he was informed by an Immigration Officer that his claim on BOR 2 was rejected.  He thus went to the Immigration Department to obtain his decision on 14/6/2017.[25]  This was not mentioned in his notice of appeal to the TCAB.[26]

(iv)  The applicant was required to report to the Immigration Department every 2 weeks on a Monday since 2013 according to his Form 8.  He must have reported 3-4 times before he demanded for the further decision in his letter dated 14/6/2017.  He did not state the date on which the officer informed him about the further decision. 

(v)  Even accepting that he got the “further decision” around 14/6/2017, there was no explanation why he wait until 30/6/2017 to file the notice of appeal.

(d)   Even if the Director had delivered the further decision to the DLS, he was not represented by them at that time. The DLS did not inform him about the further decision.

(i)  The Director had delivered the further decision to the DLS on 25/4/2017. The latter acknowledged receipt.

(ii)  At this time, the DLS did not represent the applicant.  This court accepts that there is no evidence that the applicant was informed of the further decision.  The adjudicator was wrong to conclude that the applicant had received the further decision around 25/4/2017.

(e)   There was no screening interview in relation to BOR 2 assessment.

(i)  Given that there was no response from the applicant to the invitation letter sent to his most updated address, the Director should not be criticised for deciding the BOR 2 ground on the existing information.

(ii)  There had been 5 screening interviews arranged before.  The applicant had not been cooperative.  The screening interviews were not completed satisfactorily.  It was only because of his absence from the 5^th screening interview and failure to submit medical proof that the Director decided to deal with his claim relying on the available information.

(iii)  According to the adjudicator, the applicant did not mention any new facts in the notice of appeal.[27]

(f)  He had no chance to give further evidence regarding the BOR 2 claim.

(i)  A claimant is supposed to provide all material facts and supporting documents in support of his non-refoulement claim.[28]

(ii)  The applicant had compiled his NCF with the assistance of the DLS in August 2015.  It is a detail record of events from 2004 to 2013.  It is unlikely that he had further evidence to submit.

(iii)  In his affirmation dated 16/3/2020, there is no indication at all what additional evidence might be.  According to the adjudicator, in section 2(B) of the applicant’s notice of appeal, he only repeated his story which was presented to the Director previously.  There was nothing new.[29]

53.  The adjudicator recalled his analysis about the basis of the applicant’s claim in the TCAB decision dated 1/2/2017. He also concluded that there was no merit in this appeal concerning the “further decision”.  This court agrees with his decision.  Taking all factors into consideration, this court agrees with the adjudicator that the late filing should be refused despite the error in paragraph 52(d) above.

54.  This court agrees with the TCAB decisions.  They are reasonable.  There is no error in law or procedure.

Conclusion

55.  The intended judicial review is not reasonably arguable.  There is no reasonable prospect of success.  This court refuses leave for the intended judicial review.

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