KHAN MUHAMMAD ARSHAD v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 998/2018

[2019] HKCFI 2376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 998 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 25 April 2017 refused; and

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

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1. The Applicant is a 33-year-old national of Pakistan who entered Hong Kong illegally on 21 October 2013 and was arrested by police on 12 November 2013.  After he was referredto 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 his uncle over a land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2. The Applicant was born and raised in Village Mangat, Mandi Bahauddin, Punjab, Pakistan where his parents still live.  After leaving school he worked as a farmer in his homevillage where his father and his three uncles owned a large piece of farmland inherited from his grandfather in equal shares, but the land had over the years been used only by Uncle Niaz for farming without any objection from the others.

3. However, in about 2004 when the Applicant’s father started to demand for the return of his share of the farmland so that the Applicant could farm on it after completing his education, but when Uncle Niaz refused, it led to an on-going dispute between the two families.

4. Their disputes escalated in 2006 when the Applicant left school and wanted to farm on his father’s share of the farmland, but when Uncle Niaz refused his demand to return his father’s share of the land, their dispute turned into a heated argument during which the Applicant and his father were assaulted by Uncle Niaz and his men who fired shots to the air and with death threats from Uncle Niaz that the Applicant would be killed if they insisted with their demand.

5. After the incident the Applicant and his father made a complaint to the local police,but as Uncle Niaz was a wealthy and influential man in the village with political connections,the police refused to take any action and just advised them to resolve their dispute privately.  

6. Thereafter, whenever the Applicant ran into Uncle Niaz and his men, he would be insulted and abused with death threats, and when such threats and harassments persisted up to 2013, the Applicant felt so mentally tormented that he left his home village to take shelter at his friend’s place in Mandi Bahauddin City, but when he was told by his father that Uncle Niaz and his men were still looking for him everywhere, he decided that it was nolonger safe to remain in Pakistan, and so on 18 April 2013 he departed for China, and from there he sneaked into Hong Kong and upon his arrest he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 20 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7. By a Notice of Decision dated 3 March 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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 (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Uncle Niaz or his men to the Applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that his problem with his uncle was a private family dispute over land which could be resolved through legal and court proceedings, 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 770,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Pakistan away from his home district in large cities such as Karachi, Lahore or Islamabad where it would be difficult if not impossible for Uncle Niaz or his men to locate him.

9.  By a Notice of Further Decision dated 8 December 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit 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”).

10.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of whichwas filed on 9 March 2016, and for which he attended an oral hearing on 12 December 2016before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 25 April 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found no real intention for Uncle Niaz to cause any real harm to the Applicant other than to force him to withdraw his demand over the farmland,that there was no official involvement in their dispute that state protection would be available to the Applicant as well as reasonable internal relocation within Pakistan that it would not be unduly harsh for the Applicant to relocate safely to another city away from his home area or from any risk of harm from his uncle that his non-refoulement claim for protection failed on all applicable grounds.

12.  On 1 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

 (1) that the Director failed to take into account or to give sufficient weight to the Applicant’s argument that the Pakistani state could be held liable for the inaction of its government officials in failing to provide reasonable protection to its citizen before reaching his decision on the Applicant’s claim;

 (2) that the Director failed to consider or to give sufficient weight to those quoted different sources which supported the Applicant’s claim that the police or authorities in Pakistan would not assist in assessing his claim;

 (3) that the Director’s reliance of quoted sources to conclude that the Pakistani government has taken practical steps to monitor the conduct of the police and to improve their effectiveness are mere speculations;

 (4) that the corruption and incompetency of the Pakistani police are still extremely serious and that human rights abuse are still carried out on a regular basis by the Pakistani police;

 (5) that the adjudicator failed to attain high standards of fairness in recognizing that the Applicant was not legally represented;

 (6) that the adjudicator erred in the law in similar ways as the director as evidenced by his indifference and his agreement with the Director’s decision despite all the errors pointed out by the Applicant as above; and

 (7) that the adjudicator failed to make sufficient enquiry before finalizing the decision in concluding that the extent and nature of the injuries suffered by the Applicant and failed to attain a minimum level of severity without advising the Applicant to obtain medical reports and/or evidence from the Pakistan authorities when deciding on the seriousness of the injuries suffered by the Applicant. 

13.  The Applicant was of course by then seriously late 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.

14.  As the last day of the three-month period for the Applicant to file his Form 86 fell on 25 July 2017, he was therefore more than 10 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

15.  In the Applicant’s case, a delay of more than 10 months must be regarded as substantial or excessive, for which he explained at the hearing of his application that he was then being detained at the Castle Peak Bay Immigration Centre (“CIC”) that he was not aware of the Board’s decision until much later when he was informed by his immigration officer, and hence by the time he filed his Form 86 he was already way out of time with his application.

16.  Even if indeed the Applicant was being detained at CIC at the time of the Board’s decision, and there is no supporting documentary evidence from him that he was then already being detained, I am not persuaded that he did not receive the Board’s decision in CIC or that he was so informed by the immigration officer only months later, and while I accept that he being detained and unrepresented would have encountered difficulties obtaining advice or assistance in preparing the necessary documents for his application,I am not satisfied that he has any good reason for such a serious delay with his intended application.    

17.  As for the merits of his application, his proposed grounds are mostly just broad and vague assertions of the Applicant 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 or the Board had erred in their decisions, or in what way did the Director or the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI in their assessment of state protection in Pakistan, or how they fail to make the necessary inquiry or investigation or to apply high standards of fairness in their assessment of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any error of law or proceduralin their decisions being clearly shown by the Applicant, I do not find any basis or merits inany of these grounds or that any of them to be reasonably arguable for his intended challenge.

18.  As has been repeatedly emphasized by the Court of Appeal, 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.

19.  The fact is that it has been established by both the Director and the Board in their respective 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.

20.  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.

21.  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