KHAN AFTAB v. TORTURE CLAIMS APPEAL BOARD

HCAL 2346/2018

[2021] HKCFI 3783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 2346 of 2018

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 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Pakistan who entered Hong Kong illegally on 19 March 2012 and was arrested by police on 8 August 2012.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by the local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) for leaving their party to join their rival Pakistan People’s Party (“PPP”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in District Attock, Punjab, Pakistan.  After leaving school he worked as a driver, got married and raised a family with 2 children, and in 2009 started to support PML(N) by regularly attending their local meetings and rallies.

3.  In 2011 the Applicant switched his support of PML(N) to PPP as he was not happy with the performance of the former party, which had upset some of the local PML(N) supporters, and the situation became worse after the son of their local leader was killed in a car accident involving the Applicant’s brother, and after his brother had fled the country, those PML(N) supporters then turned against the Applicant with death threats, and after the Applicant discovered that he had been followed by those PML(N) supporters, he became fearful for his life and fled to Karachi, and on 16 March 2012 he departed for China and sneaked into Hong Kong, and upon his arrest by police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 15 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  Whilst being released on recognizance pending the determination of his claim, the Applicant was arrested again on 11 December 2014 for undertaking unauthorized employment and was subsequently convicted and sentenced to prison for 15 months.  

5.  By a Notice of Decision dated 24 June 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then remaining applicable grounds other than torture risk including 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 those local PML(N) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of 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 199 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 part of Pakistan away from his home district in large cities such as Karachi where he had stayed before without incidents and where it would be difficult if not impossible for his perceived enemies to locate him.

7.  By a Notice of Further Decision dated 1 August 2017 the Director also rejected the Applicant’s claim for non-refoulement protection under any other absolute or non-derogable rights of HKBOR including right to life under Article 2 (“BOR 2 Risk”) after considering additional submission from him via DLS and upon finding that he failed to establish a personal and real risk of his BOR 2 right being violated upon his return to Pakistan.

8.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal which was filed on 7 July 2016, but subsequently on 1 June 2018 he applied via DLS to withdraw his appeal/petition as he considered it safe for him to return to his home country, and on 4 June 2018 the Board acceded to his request and directed that his appeal be withdrawn and also confirmed the decision of the Director.

9.  Some 4 months later on 25 October 2018 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of both decisions of the Director but not the decision of the Board, and in his supporting affirmation of the same date he explained that he earlier withdrew his appeal/petition from the Board after hearing from his friends in Pakistan that his issues back there had been resolved and so he thought it was safe to return to his home country, but recently he received a phone call from a friend in Pakistan that his enemies have heard of his imminent return and have planned to kill him upon his return, and so he faces fresh danger to his life and has to make his present application against both decisions of the Director, and put forth the following grounds for his intended challenge:

(1)   that the Director reached his decisions wrongly in assessing his non-refoulement claim that they were not fair or reasonable as required by the Wednesbury test;

(2)   that the right to life is protected under Article 28 of the Basic law and Article 2 of the Bill of Rights, and in practice the right to life is mainly protected by the criminal law and that it must be protected from extra-judicial killings which he will face if deported to Pakistan; and

(3)   that the Director had listed relevant COI which supported the Applicant’s aversions that the police in Pakistan would not be able to protect him but in his decisions the Director relied only on those COI which suited his
pre-conceived conclusion that is a clear case of unfair attitude shown by the Director that is in itself enough to render his decisions void.  

10.  As noted above, the Applicant has not sought leave to challenge the Board’s decision which was to allow him to withdraw his appeal/petition against the Director’s decisions, perhaps rightly so given the fact that his request, presumably on the basis as noted in his affirmation above, was made via his lawyer from DLS and hence with legal advice, and as found by the Board in its letter of decision dated 4 June 2018 as follows:

“The Board has considered your application to withdraw your appeal/petition having regard to all the available information placed before it. After consideration, the Board is satisfied that your application to withdraw the appeal/petition was freely sought, and that you understood the consequences of the withdrawal. The Board is also satisfied that there is good reason for your proposed withdrawal of the appeal/petition, namely, that you consider it safe for you to return to your home country. Under the circumstances, the Board has given direction that your appeal/petition is withdrawn. The Board has also directed that the immigration officer’s decision of 24 June 2016 is confirmed.

Please note that your appeal/petition has now been disposed of and finally determined by the Board.  No further action will be taken by the Board in respect of your appeal/petition. ...”

11.  The Board having thus found that the Applicant had acted with the knowledge and intention to bring his appeal/petition to an end when he applied through his lawyer for his appeal to be withdrawn, and having so validly withdrawn his appeal/petition accordingly as stated in its letter, the appeal was no longer extant and hence the Board has become functus officio with no jurisdiction to take any further step regarding the appeal, notwithstanding the fact that it had made no determination on its merits, as the dismissal of an appeal on its withdrawal would have properly and effectively disposed of the appeal, as so held by the Court of Appeal in Re Das Purnima Rani, CACV 85/2019 [2019] HKCA 669, 13 June 2019 (see [41] of the decision). 

12.  Accordingly, the Applicant is left with the only option to challenge the decisions of the Director, but even with the later Further Decision of 1 August 2017, he would be 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 regarding the Director’s Further Decision fell on 1 November 2017, the Applicant was therefore almost one year late with his application, and 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 almost one year as regard the Director’s Further Decision, never mind the even longer delay with the earlier first decision of 24 June 2016, must be considered as extremely inordinate, for which the Applicant did not specifically provide any explanation in his affirmation other than as noted above, nor did he attend the hearing of his application so as to offer any explanation for his such serious delay.

15.  As for the merits, if any, of his intended application, of which I am prepared to consider both decisions of the Director covering all the applicable grounds, but those complaints of the Applicant as stated above appear to me just some broad and vague assertions containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director had erred in his decisions, or how did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way were his decisions unfair or unreasonable in the assessment of his non-refoulement claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.  As such I do not find any of them reasonably arguable, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or in his decisions 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 fact is that it has been established by the Director in his decisions that the risk of harm in his 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 both decisions of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure to apply high standards of fairness in the 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 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