IQBAL MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 1484/2019

[2023] HKCFI 2594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1484 OF 2019

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 25 August 2017 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 54-year-old national of Pakistan who entered Hong Kong illegally on 1 April 2008 and was arrested by police some 5 months later on 13 September 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 by his cousins over a land dispute in his home district.  He was subsequently being released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Nawan Lok Pinan Wal, District Jhelum, Tehsil Pind Dadan Khan, Punjab, Pakistan as the only son of his parents.  After leaving school he got married, raised a family with 3 children, and assisted his family farming on his father’s farmland which he stood to inherit in the event of his father’s death.

3.  The farmland was his father’s share of his grandfather’s estate equally distributed between his father and his uncle, but after his uncle passed away in 2005 or 2006, his cousins, i.e. the 4 sons of his uncle, demanded that all their grandfather’s land be divided into 5 equal plots to be re-distributed amongst the 5 of them as the male descendants of the family, but to which the Applicant and his father refused.

4.  After several unsuccessful attempts to resolve their disputes, his cousins lost their temper and made threats against the Applicant, and one day in January 2008 while the Applicant was working on his father’s farmland, his eldest cousin came to threaten to kill him with a gun if he still refused their proposal, but the Applicant managed to flee from the scene and fled home unharmed.   

5.  Later in February 2008 when he heard that his cousins were making plans to kill him, the Applicant fled to Lahore to take shelter in a friend’s place, and on 23 March 2008 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he then raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 2 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 30 December 2014 the Director of Immigration (“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 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”).

7.  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 his cousins 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 evidence of any real intention of his cousins to seriously harm or kill him or to still have any adverse interest in him after all these years since he left the country in 2008, that it was in any event a private land dispute between them within their family without 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 233 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 areas of the country away from his home district in large cities such as Lahore where he has stayed before without incidents and where it would be difficult if not impossible for his cousins to locate him.

8.  On 12 January 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 7 October 2015 before the Board during which he declined to give any further evidence after adopting those given earlier to the Director and were available in the appeal bundle before the Board or to answer questions raised of his claim by the Adjudicator for the Board.  On 2 December 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found no reliable evidence of any real threats from the Applicant’s cousins to harm or kill him over their land dispute, that there were discrepancies in his claim but which he failed to clarify or explain when he declined to give evidence or to answer questions raised of his claim during his appeal hearing that the credibility of his claim was found to be in doubt, which was further undermined by his failure to raise his claim upon first arriving in Hong Kong until after his arrest more than 5 months later, and that in any event it was a private land dispute within his family without any official involvement that state/police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by his cousins that his claim for non-refoulement protection failed on all applicable grounds.

10.  Meanwhile on 10 January 2017 the Director on his own initiative in writing invited the Applicant to submit any 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 25 January 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon him return to Pakistan.

11.  On 2 May 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but as his Notice of Appeal was filed outside the 14-days period required by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) of the Ordinance the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a decision dated 25 August 2017 the Board allowed the late filing of the Applicant’s Notice of Appeal but dismissed his appeal upon finding that he had failed to provide any facts or evidence for his BOR 2 Claim, and that it also confirmed the Director’s Further Decision.

12.  On 31 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he does not agree with the Board’s decision as all his statements are true but without putting forward any proper ground for his intended challenge.

13.  By then the Applicant was however 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.

14.  As the last day of the 3 month-period for him to file his Form 86 fell on 25 November 2017, the Applicant was therefore more than 1 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.

15.  In the Applicant’s case, a delay of more than 1 ½ years must be considered as extremely substantial and inordinate, for which he failed to 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.   

16.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended application.  As such, 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, and given the factual basis of even his own case that the Applicant’s claim simply did not engage the BOR 2 ground on its limited scope, I do not find any reasonably arguable basis for his intended challenge or any merits in his intended application.

17.  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.

18.  In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their earlier decisions that the risk of harm in his claim if real 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.               

19.  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 on BOR 2 ground as well as all the other applicable grounds.

20.  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