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

HCAL 1201/2018

[2019] HKCFI 1122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1201 of 2018

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 26 January 2018 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 47-year-old national of Pakistan who last entered Hong Kong illegally in February 2014 and was arrested by police in September 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by Jamil for making a complaint to the police that he had committed a murder.  He was subsequently released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Fazailpur, District Tehseel, Jhelum, Punjab, Pakistan.  After leaving school he enlisted in the army, and upon discharge he got married and worked as a taxi driver.

3.His father-in-law, who was a supporter of the political party Pakistan Muslim League (N) (“PML(N)”), used to have political disputes with Jamil, a prominent member of rival party Pakistan Muslim League (Q) (“PML(Q)”) in neighbouring Village Muhaal where they both lived, of which the applicant heard had led to the murder of his father-in‑law’s close friend and fellow supporter in 1994, and for which his father-in-law later assisted the widow to make a report to the police against Jamil.

4.As a result Jamil was arrested by the police and was subsequently charged for the murder, but was later acquitted by the court after his trial in 1996.  Upon his release Jamil swore to take revenge against the applicant’s father-in-law, and one evening in late 1998 the applicant was told that his father-in-law had been shot in his home village by Jamil and later died in the hospital.

5.A few days later the applicant accompanied the brother of his father-in-law to make a complaint to the police against Jamil, for which Jamil was later arrested and charged for the murder of the applicant’s father-in-law.

6.However, in 2000 Jamil was again acquitted by the court after a trial, for which the applicant was later told that he had bribed the trial judge.  The brother of the applicant’s father-in-law then lodged an appeal to the High Court against the acquittal, for which the applicant assisted in finding lawyers for him and paying for the legal costs.

7.When Jamil heard about the applicant’s involvement in the appeal, he sent warnings to the applicant threatening him to stop assisting the family of his father-in-law with their appeal and that he would be killed if they continued to pursue their appeal.

8.Fearing for his own life the applicant therefore fled to Karachi to take shelter at a friend’s place where he stayed for one and a half years without incidents, but in July 2002 he departed for Hong Kong where he overstayed until his arrest by the police in February 2006, for which he was convicted and sentenced to prison for three months, and thereafter in May 2006 he was repatriated back to Pakistan.

9.Upon returning to Pakistan the applicant was told that Jamil had gone overseas, and so he returned to his home village to run a food stall to earn his living.  In about 2008 the appeal brought by his father-in-law’s family was dismissed by the High Court, and when the family decided to appeal to the Supreme Court, the applicant again assisted in hiring lawyers for them and paying for the legal expenses.

10.In early 2009 the applicant heard that Jamil had returned to Pakistan and had hired a gangster to kill him, he therefore fled his home village to take shelter in Jhelum City, leaving his stall in the care of his employee.  Later he was told that some men armed with guns had come to his stall looking for him, whom he suspected were sent by Jamil to kill him.

11.In 2010 the applicant was told that one day Jamil and his friend had come to his sister-in-law’s home where Jamil’s friend tried to rape her but during the scuffle with his brother-in-law that Jamil’s friend was accidentally shot with his own gun and died from the wound, of which Jamil later made a false claim to the police that it was the applicant and his brother-in-law who had killed his friend.

12.As a result the applicant and his brother-in-law were arrested by the police and detained for two weeks for interrogation during which the applicant was repeatedly beaten by the police including being hit with leather straps.

13.Eventually the applicant and his brother-in-law were transferred to the District jail where they were charged for murder and detained until their trial in late 2011 when his brother-in-law was convicted by the court but the applicant was acquitted.  On his way out of the court the applicant ran into Jamil who was waiting there for him and threatened that sooner or later he would kill him and left.

14.Thereafter the applicant was afraid to return to his home and instead stayed at his cousin’s place, but when he heard that Jamil had sent gangsters to look for him, he decided to depart Pakistan again for his own safety, and so on 6 December 2013 he left for China, and from there he later sneaked into Hong Kong in early 2014, and upon his subsequent arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 14 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

15.By a Notice of Decision dated 12 February 2016 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”).

16.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 Jamil or his people to the applicant upon his return to as low due to the absence of past ill-treatment from them, the fact that Jamil had been arrested by police and brought to trial twice before show that he had no influence over the Pakistan authorities and 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 (“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 part of Pakistan away from his home district in large cities such as Karachi where he had lived before without incidents and where it would be difficult if not impossible for Jamil or his people to locate him.

17.By a Notice of Further Decision dated 24 March 2017 the Director again rejected the applicant’s claim upon receiving and considering additional representations from DLS on his behalf 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”).

18.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 25 February 2016, and for which he attended an oral hearing on 19 June 2017 before the Board with legal representation from DLS during which the applicant gave evidence and answered questions put to him by the adjudicator for the Board and with submissions made by his lawyer on his behalf.  On 26 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

19.In its decision the Board found that the applicant had inflated and exaggerated the hostility between him and Jamil merely because he had assisted in the legal proceedings against him, that the only direct threat ever made by Jamil against him was verbal outside the court whilst all other alleged threats were based on hearsays and speculation, that in any event state or police protection would be available to the applicant, as well as reasonable internal relocation alternatives that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move away from his home district to large cities such as Karachi where he had stayed before for one and a half years without any risk of threats from Jamil or his people.    

20.On 26 June 2018 the applicant filed his Form 86 (dated 15 May 2018) for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given either in his Form, or in his supporting affirmation of the same date in which he merely stated that he was not satisfied with the Board’s decision.

21.The applicant was by then in fact out of time with his application, as Order 53 rule 491) of the high Court Ordinance, Cap. 4 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.

22.In the Applicant’s case, the three-month period within which he was to file his Form 86 expired on 26 April 2018, and hence he was late by 2 months 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] 1 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

23.A delay of 2 months cannot be said to be insignificant, for which the applicant did not provide any explanation in his Form or his supporting affirmation or otherwise, nor as noted above did he put forward any grounds for his intended challenge of the Board’s decision, and in the absence of which I am unable to see any good reason for his such delay or any merits or prospect of success in his intended application.   

24.The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, the Board was entitled to find no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

25.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.

26.In the premises and for these reasons I am not satisfied that there is any realistic 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.

Dated the 6^th day of May 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