SALEEM MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 3495/2019

[2025] HKCFI 3420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3495 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 the Applicant 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 31 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 53-year-old national of Pakistan who entered Hong Kong illegally on 10 October 2013 and was arrested by police on 13 October 2013. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Peoples Party (“PPP”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Gulistan Colony, Lyari Town, Karachi, Sindh Province, Pakistan. After leaving school he worked in a noodle manufacturing factory, got married and raised a family with 4 children in his home district, and supported PML(N) regularly attended their local meetings and activities including posting up their posters in his neighborhood but without holding any official post in the party.

3.  One day in late 2012 he was approached by a group of local PPP supporters who demanded him to stop supporting PML(N), and when he refused, they made threats against him.

4.  Several months later in January 2013 the Applicant was again approached by a group of PPP supporters to stop supporting PML(N), and when he again refused, they attacked him with wooden clubs that he suffered cuts and bruises all over the body, and before they left those men warned him that next time they would kill him if he still refused to quit his support for PPP.

5.  After another assault by those PPP supporters in February 2013 and with persisting death threats from them, the Applicant became concerned for his safety and was advised by his wife to leave the country to save his life, and so he fled from his home district to Ithad Town, and on 18 April 2013 he departed Pakistan 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 18 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 14 April 2016 and a Notice of Further Decision dated 31 May 2017 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”).

7.  In his decision[1] 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 PPP supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to harass and intimidate him as rival political supporters which were common in Pakistan, that in any event 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 areas of the country away from his home district in large cities such as Lahore where it would be difficult if not impossible for anyone to locate him.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, but for which he failed to attend the scheduled hearing before the Board without any explanation nor thereafter responded to the Board’s inquiry as his non-attendance, whereupon the Board proceeded to deal with his appeal in his absence and on papers based on the materials and information provided by him earlier to the Director and available in the hearing bundle before the Board. On 31 August 2017 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

9.  In its decision the Board accepted the Applicant’s claim of political involvement in his support of PML(N) and that he may have faced harassments and intimidations from supporters of rival PPP but found no reliable evidence of any real intention of those local PPP supporters to seriously harm or kill him or for them to specifically target him for any political reason or to have any adverse interest in him given that he was just an ordinary PML(N) supporter without any official post in the party, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 25 November 2019 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge.

11.  By then the Applicant was also 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 to extend the period within which the application shall be made.

12.  As the last day of the three-month period for him to file his Form 86 fell on 31 November 2017, the Applicant was therefore almost 2 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.

13.  In the Applicant’s case, a delay of almost 2 years must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and at the hearing of his application he asserted that he never received the decision in the mail until much later when he reported on his recognizance that he was so informed by his immigration officer, but by then he was already out of time with his application.

14.  The record shows that the decision was sent by the Board on the same day of 31 August 2017 to the Applicant’s then reported address without being returned through undelivered post, and in the absence of any evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided a good or valid reason for his such serious delay.

15.  As for the merits, if any, of his intended application, as noted above that the Applicant failed to put forward any proper ground in his Form or affirmation for his intended challenge, nor was he able to do so at the hearing of his application other than just repeating his claim as before. 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, 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 both the Director and the Board in their respective decisions that the risk of harm in his claim even 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.

18.  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.

19.  For all 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 or valid reason for his such 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