Khan Wasiq v. Torture Claims Appeal Board and Another

HCAL 1054/2017

[2018] HKCFI 1435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1054 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 40-year-old national of Pakistan who arrived in Hong Kong on 24 August 2011 from China but when he was refused permission to enter, he lodged a torture claim with the Immigration Department on the basis that if he returned to Pakistan he would be harmed or killed over a dispute with his former customers regarding compensations for their stolen motorcycles.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in District Attock, Pakistan.  After leaving school he first worked as a farmer and in 2009 he opened a showroom in Tehsil Hazro trading in new and used motor cycles and where his customers could place their motor cycles for sale and for which he would earn a commission from both the buyer and seller.

3.One day in July 2011 the applicant found that his shop had been broken in and with all the motor bikes stolen including those placed with him for sale by his customers.  He immediately reported the burglary to the police and was given a FIR report, but after several weeks when the police’s investigation did not yield any result, and when the applicant did not have the means to compensate his customers for their losses, he thereforeclosed down his shop and his business, but when his customers continued to press him for compensations for their losses and started to threaten to kill him if he still failed to do so, the applicant decided to leave Pakistan for his own safety and departed on 9 August 2011 for China, and when he was refused permission to enter Hong Kong on 25 August 2011, he raised his torture claim with the Immigration Department, and later submitted the Supplementary Claim Form (“SCF”) for non-refoulement claim on 5 November 2014 with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 1 April 2015 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 section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap.  383 (“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”).

5.In his decision the Director found on the facts of the applicant’s claim that the level of risk of harm that he feared would materialize to be low, that his problem with hisformer customers was just a case of private monetary dispute without any involvement of the state that state and police protection would be available to him if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocationalternatives 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 is unlikely for his former customers to have the ability or resources to locate him in areas away from his home district such as Karachi where he as an able-bodied adult with work experiences can live and work free of any threats from his former customers.

6.On 15 April 2015 the applicant filed his appeal against the Director’s decision to the Torture Claims Appeal Board (“the Board”) but failed to attend the oral hearing scheduled on 8 March 2016 before the Board without any explanation.  On 21 April 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board agreed with the Director that the level of risk to the applicant from his former customers to be low and localized to the immediate vicinity of his home area from non-state bodies or agents that state protection and internal relocation alternatives are reasonable and available to the applicant such as Karachi for his safe return to Pakistan.  

8.By a Notice of Further Decision dated 10 May 2017 the Director again rejected the applicant’s 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”) after receiving and considering additional material submitted by the applicant that his former customers were still looking for him and harassing his family for compensations.

9.On 26 June 2017 the applicant filed his appeal against that the Director’s further decision to the Board, for which he did on this occasion attend an oral hearing on 20 November 2017 before the Board during which he just reiterated that his former customers were still pursuing him for compensations.  Subsequent to that hearing the applicant wrote to the Board a letter dated 29 November 2017 indicating his intention to return to Pakistan.  On 1 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.On 12 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward the following grounds for his intended challenge:

(1)  against the Board’s first decision for failing to examine or give sufficient weight to the extended meaning or concept of state acquiescence or the effectiveness of state protection to its citizens against risk of torture in Pakistan;

(2)  against the Board’s first decision for failing to properly assess the effectiveness or competency of the police in Pakistan when considering his claim;

(3)  against the Board’s first decision for failing to give sufficient weight in the corruptions of the government and human rights abuses in Pakistan when considering his claim;

(4)  against the Director’s further decision for failing to take into account of the fact that the applicant was then no longer legally represented in his claim relevant to BOR 2 risk;

(5)  against the Board’s second decision for failing to apply high standards of fairness in its consideration of his claim; and

(6)  against the adjudicator for the Board for failing to make sufficient enquiry into the threats against the applicant and whether he has suffered any mental injuries.   

11.For his intended challenge against the Board’s first decision which was dated 21 April 2017, the applicant was almost five months out of time as Order 53, rule 4(1) requires that an application for leave to apply for judicial review should be made promptlyand in any event within three months from the date when grounds for the application firstarose unless the Court considers that there is good reason for extending the period within which the application shall be made, which was on or before 21 July 2017 in the present case, and for which the applicant never provided any reason or explanation for his delay, nor did he make any application for extension of time, hence as I see it the other relevant factor likely to be of significance which may constitute a good reason for extending time is to consider the merits of the applicant’s substantive application: see AW v Director of Immigration and Anor CACV 63/2015.   

12.However, those grounds relied on by the applicant for his intended challenge are all just his broad and vague assertions 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 why it was necessary for them to consider the concept of extended state acquiescence or the situations of human rights violation in Pakistan when even on the applicant’s own case that his problem with his former customers was one of private monetary dispute without any involvement of the state or the police.

13.There is also no basis for his complaint of the Director or the Board of not taking into account of the fact that he was then no longer legally represented when considering his claim under BOR 2 risk, as notwithstanding the fact that he failed to attend his oral hearing in his first appeal to the Board, he was still afforded one in his second appeal to the Board during which he was able to make further representation before the Board which was in my judgment entitled to dismiss his appeal after hearing his evidence and on the facts of his claim relevant to BOR 2 risk, and that the dismissal was as explained by the adjudicator supported by the applicant’s letter stating his intention of returning to Pakistan.

14.In my judgment none of these grounds provide any basis or merits for the applicant’s intended application for judicial review or to justify extending time for him to do so, and having proceeded to consider 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.

15.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 extending time for his intended challenge of the Board’s first decision, I accordingly refuse his leave application.

Dated the 29^th day of June 2018.

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