Razzaq v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 831/2017

[2019] HKCFI 773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 831 of 2017

BETWEEN

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;

Order by Deputy High Court Judge Bruno Chan:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 10 March 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/she 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 52-year-old national of Pakistan who entered Hong Kong illegally on 22 February 2014 and was arrested by police on the same day.  After being referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a wealthy and influential man NS and his associate over their personal disputes.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Ahi, District Bhimber, Mirpur, Azad Kashmir, Pakistan, and after leaving school he had worked as a construction worker in various places in Pakistan, and got married with five children all of whom still live in Pakistan.

3.The applicant’s problems with NS started in about 1989 when he sided with his uncle over his land dispute with NS’s nephew who was later murdered for which NS accused the sons of his uncle as the culprits and blamed the applicant for taking their side, and had since been trying to take revenge against him with a series of false charges made to the police starting with a false accusation in 1997 that he had committed a murder, for which the applicant was arrested and detained by police for several weeks during which he was tortured before he was eventually acquitted by the court after a trial.

4.In 1999 or 2000 the applicant was again arrested by the police for illegal possession of firearms as a result of another false change made against him by NS, and it was only after a bribe was made by his uncle to the police that he was later released and with the charge dropped.

5.In 2008 the son of NS’s close associate was killed, and when the applicant heard that the police were looking for him about the case, he suspected that it was another false claim made against him by NS, and as he was concerned that he would again be detained and tortured by the police, he therefore fled to hide in his friend’s place, but after he was shot at by someone from the family of NS’s close associate in early 2010 and injured his left leg, he fled to Karachi and then to Lahore, but when he heard that NS and his close associate were looking for him everywhere, he felt it was no longer safe to remain in Pakistan, and departed in March 2010 for China, and from there he sneaked into Hong Kong on 20 April 2010 and lodged a torture claim which was subsequently rejected by the Immigration Department and in November 2012 he was repatriated to Pakistan.

6.Upon returning to Pakistan the applicant was told by his family that NS was still looking to harm or kill him, he therefore took shelter at his friend’s home in Lahore instead of going home, but when he later heard that NS had found out that he was hiding in Lahore, he left Pakistan on 28 October 2013 again for China but returned after two weeks to hide in his father-in-law’s place in Doba, but after he was attacked by some strangers in Doba, he left Pakistan on 22 January 2014 for China again, and from there he again sneaked into Hong Kong and lodged his non-refoulement claim, for which he later completed a Supplementary Claim Form on 19 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 5 February 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including 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”).

8.In his decision the Director found the low intensity and frequency of past ill-treatment from NS essentially consisted of false charges made against the applicant or the threats from his close associate did not attain a minimum level of severity under any of the applicable grounds, that in the absence of any evidence of official involvement that state protection would be available to the applicant if resorted to, and that 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 work experience to move to other area away from his home district in large cities such as Karachi or Lahore where it would be difficult if not impossible for NS or his associate to locate him.

9.By a Notice of Further Decision dated 29 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 Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which he filed his appeal on 19 February 2016, and for which he attended an oral hearing on 12 January 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 10 March 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found the core of the applicant’s account unreasonably vague, materially incoherent and inconsistent and contradicted by reliable background information, and that when given the specific opportunity to address these difficulties and to explain himself during the hearing he was unable or unwilling to do so, and concluded that he is not a witness of truth and that none of the information he has provided can be given any credence whatsoever, and that his claim therefore fails on all applicable grounds. 

12.On 31 October 2017 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 the Form, nor did he request for any oral hearing, whilst in his supporting affirmation of the same date he simply deposed that:

“ I declare that case has not been decided on merit. I have provided some documents which have not been made part of record like medical certificate. Even my final appeal was not considered on merit and it was dismissed without merit. I pray to re-open my case for making decision.”

13.By then the applicant was way 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.Here the last day for the applicant to apply for leave to review the Board’s decision fell on 10 June 2017 and hence he was more than four months late with his Form 86, for which he explained in a note written on a letter from the Director of Legal Aid attached to the Form that the delay was due to his waiting for his legal aid application being processed.

15.Whilst that letter shows that his legal aid application was rejected only on 18 October 2017 and that it appears that he did file his Form 86 quite promptly thereafter in less than two weeks on 31 October 2017, the question must be asked of when did he make his application for legal aid in the first place, as the Board’s decision came on 10 March 2017 and if he had made his application early or soon thereafter, it would be inconceivable to me that it would have taken more than six months for the Legal Aid Department to process such his application.  In the absence of any further particulars from the applicant about his legal application, I have difficulty accepting that his explanation for the delay as it stands would constitute a good reason for extending time.

16.As for the merit of his intended application as one of the most significant matters to be taken into account in the consideration of what may constitute a good reason for extending time, I have even more difficulty in finding any from his supporting affirmation as noted above, while his complaint that his supporting documents including the medical certificate had not been considered as part of the record of his claim is plainly wrong, as evidently they had been taken into account in their consideration of his claim by both the Director in paragraphs 8 – 9 of his decision, and by the Board in further details in paragraphs 58 – 63 of its decision.

17.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, that the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers.  In the absence any legal error or procedural unfairness or irrationality in their decisions being identified by an applicant, judicial review is not an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400. 

18.In the premises 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.

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 as such there is no good reason for extending time to his leave application which is accordingly dismissed.

Dated the 22^nd day of March 2019.

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