BUTT MUHAMMAD ZUBAIR V, THE PETITION TEAMS (SECURITY BUREAU)

HCAL 434/2018

[2020] HKCFI 1296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 434 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 present / 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 18 October 2017 refused; and

2.  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 32-year-old national of Pakistan who entered Hong Kong illegally on 11 September 2007 and was arrested by police on 21 April 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed in revenge by the family of the man killed by his close friend.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Jalalpur Jattan, District Gujrat, Punjab, Pakistan.  After leaving school he assisted in his father’s shop in the neighbourhood.

3.  One day in 2007 he received a telephone call from his close friend Iftikhar that he had killed Lala, a local gangster, for raping his sister, and that he had to flee the country to avoid being arrested by the police for the murder. Thereafter the Applicant had not heard from Iftikhar again.

4.  Later in the day Lala’s body was discovered by the police, but before any police investigation had started, his family told the police to close the case as they wanted to deal with the matter by themselves.

5.  Sometimes thereafter the Applicant was advised by another friend to be careful as Lala’s family had discovered that it was Iftikhar who killed Lala, and as they knew that the Applicant was a good friend of Iftikhar, they may come after him for revenge.

6.  One afternoon while the Applicant was taking a bath, he heard some gun shots outside his house, and when he looked from his window, he saw a group of masked men with guns driving away, and although he was unable to see any of their face, he suspected that they were sent by Lala’s family to harm him, but he did not make any report to the police.

7.  As he became fearful for his life, the Applicant therefore left his home to take shelter in his sister’s home in Lahore for several months before returning to home in Gujrat. However, several days later, some masked men appeared again outside his home and fired shots at his house before leaving in their vehicle.

8.  The Applicant was not harmed in the shooting incident, and did not report the matter to the police, but as he felt it was no longer safe to remain in Pakistan, he therefore departed on 24 August 2007 for China, and from there he sneaked into Hong Kong, and subsequentlyupon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 27 May 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  By a Notice of Decision dated 25 August 2014 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”).

10.  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 Lala’s family upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them,that there is no reliable evidence of any intention of Lala’s family to take revenge against the Applicant or that there was any connection between them and unknown masked men who fired shots outside his home, 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 show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 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 work experience to move to other part of Pakistan away from his home district in large cities such as Karachi or Lahore where it would be difficult if not impossible for Lala’s family to locate him.

11.  By a Notice of Further Decision dated 16 October 2017 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”).

12.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 8 September 2014, and for which he attended an oral hearing on 5 February 2015 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 18 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.  In its decision the Board found inconsistencies and contradictions in his account of events occurred over the disputes between Iftikhar and Lala to become doubtful about his claimed fear of revenge from Lala’s family, but that even on his own case that the Applicant failed to establish his claim under any of the applicable risks, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

14.  On 19 March 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,and in his supporting affirmation of the same date he merely repeated his claim that his life was still in danger in his home country, and that he was not satisfied with the Board’s decision but without providing any particulars or specifics or elaboration why he was so.  

15.  The Applicant was by then also 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.

16.  As the last day of the three-month period for him to file his Form 86 fell on 18 January 2018, the Applicant was therefore two 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.

17.  In the Applicant’s case, a delay of two months must be considered as significant,for which he explained in his Form 86 that he had changed his address without providing any further particulars, but given that his address stated in his Form 86 appears to be different from the one to which the Board sent its decision, I assume he meant to say that because he had changed his address, he did not receive the Board’s decision within the stipulated period for him to file his Form 86, but in the absence of any further particulars as to exactly when he changed his address or any evidence that he had accordingly informed the Board,I am not satisfied that the Applicant has provided any good reason for his delay.

18.  Nor did he, as noted above, disclose any reasonably arguable grounds for his intended challenge, and in the absence of any error in the Board’s decision being shown by the Applicant, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, nor do I 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 assessment and determination of the Applicant’s claim.  As such I do not find any merits in his intended application.

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 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