TAHMOOR HUSSAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 239/2022

[2022] HKCFI 1678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 239 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 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 17 July 2019 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of Pakistan who entered Hong Kong illegally on 25 September 2015 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, 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 (N) (“PML(N)”) as he supported their rival Pakistan Tehreek-e-Insaf (“PTI”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in a small village near Choa Khalsa, Pakistan. After leaving school he worked in general labour jobs in his home village, and supported PTI regularly attended their local meetings and rallies.

3.  One day in 2014 while he together with some of his fellow PTI supporters were putting up posters of their party in a nearby village, they were attacked by some PML(N) supporters with wooden sticks but the Applicant managed to make his escape unharmed to return to his home village. 

4.  However, later when he heard that those PML(N) supporters had threatened to kill him if they saw him again, the Applicant became fearful for his life and fled from his home village to other places including Islamabad, Gujjar Khan, Faisalabad and Lahore without further incidents, but as he still feared for his safety, he departed Pakistan one day in January 2015 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 30 November 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”).

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 absence of or low intensity and frequency of past ill-treatment from them, that there was no valid reason for them to specifically target him given that he was just an ordinary PTI supporter without any official post in the party, 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 208 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 Lahore where he had stayed before without incidents and where it would be difficult if not impossible for those PML(N) supporters to locate him.

7.  On 10 December 2018 he lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before his appeal was heard or dealt with by the Board, the Applicant by a letter dated 17 June 2019 requested to withdraw his appeal as he wanted to return to his home country as soon as possible as it was safe for him to do so, and that he had money to purchase his own airfare for his flight to return to Pakistan.

8.  Upon receiving the Applicant’s subsequent confirmation in writing dated 15 July 2019, and upon being satisfied that his application to withdraw his appeal was freely sought, that he fully understood the consequences of the withdrawal, and that there was good reason for his proposed withdrawal as he considered it was safe for him to return to Pakistan, the Board by a notice of decision dated 17 July 2019 allowed the Applicant’s request and directed that his appeal be withdrawn and dismissed, and that it also confirmed the Director’s decision.    

9.  However, more than 2 ½ years later on 21 April 2022 the Applicant filed a 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, and in his supporting affirmation of the same date he merely stated that he is not satisfied with the decision as his life is still dangerous in his country and just repeated his claim of fear of harm from those local PML(N) supporters as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.  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.

11.  As the last day of the three-month period for him to file his Form 86 fell on 17 October 2019, the Applicant was therefore more than 2 ½ years 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.

12.  In the Applicant’s case, a delay of more than 2 ½ years must be considered as extremely 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 last reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay. 

13.  As for the merits, if any, of his intended application, as noted above the Applicant has 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 reasonably arguable basis or merits in his intended application either.

14.  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.

15.  In the Applicant’s case, the Board dismissed his appeal at his own request and his written confirmation that it was safe for him to return to his home country upon being satisfied that he knew what he was doing, that he was fully aware of the consequences of the withdrawal, and that he had good reason to do so before dismissing his appeal and confirming the Director’s decision which has the effect of having finally determined and disposed of his non-refoulement claim, as it was so held by the Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, as it was stated at [41] of the judgment:

“Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal … s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.”

16.  As noted above, in the absence of any error of law or irrationality or procedural unfairness in the Board’s decision to allow the Applicant’s request to withdraw his appeal and by disposing of it accordingly by dismissing it and confirming the decision of the Director in rejecting his non-refoulement claim, I do not find any fault in the Board’s decision, and upon considering the decision of the Director with rigorous examination and anxious scrutiny, nor do I find any error of law or procedural unfairness or any failure on the part of the Director to apply high standards of fairness in his consideration and assessment of the Applicant’s non-refoulement claim.

17.  Furthermore, the fact is that it has been correctly established by the Director in his 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.  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