Mubarak Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 836/2017

[2019] HKCFI 784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 836 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 against the decision of Torture Claims Appeal Board made on 27 January 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 32-year-old national of Pakistan who entered Hong Kong illegally on 22 April 2015 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 in revenge arising from a fight during a Kabaddi match in his home village.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Faisalabad, Punjab, Pakistan where his parents and siblings still live.  After leaving school he worked as a farmer in his home village and got married.

3.One day in early 2015 when he saw his cousin being hit by AS of the opposing team in a scuffle during a Kabaddi match in the village, he took a hockey stick and hit back at AS causing a wound to his head.

4.About one month later when the applicant and his cousin ran into AS in the street, they got into a fight during which the applicant again hit AS with a hockey stick and caused an injury to his head.

5.Two weeks later AS with several friends took revenge when they ambushed the applicant and his cousin by hitting them with sticks until they were stopped by passers-by, and before he left the scene AS threatened to kill the applicant.  Fearing for his life the applicant therefore fled to Jhang to take shelter at his cousin’s home, but when he heard that AS was looking for him in Jhang, he then moved to Lahore to stay at another relative’s place for about a month before departing Pakistan for China in March 2015, and from there he sneaked into Hong Kong on 22 April 2015 and lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 10 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.During his stay in Hong Kong the applicant learnt from his family that his cousin and AS have reconciled with each other with the help of their families and the villagers, and while his own family did also approach AS’s family for reconciliation, AS appeared not willing as he was hit by the applicant more severely, and the applicant therefore feared that AS would still seek revenge against him if he were to return to Pakistan.

7.By a Notice of Decision dated 31 March 2016 the Director of Immigration (“the 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 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 took into account of all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from AS against the applicant upon his return to Pakistan as low, that after all these years whatever enmity of AS towards the applicant may have dissipated and with assistance of their families and fellow villagers it would not be unreasonable to expect that reconciliation between them would be possible, that their dispute was of private and personal nature 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 199 million people spread across a vast territory of more than 770,000 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 such as Lahore where it would be difficult if not impossible for AS to locate him.

9.By a Notice of Further Decision dated 5 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, which appeal he filed on 12 April 2016, but for which he failed to attend the oral hearing on 8 December 2016 without any explanation, and the Board proceeded to deal with his appeal without scheduling for another oral hearing.  On 27 January 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found the applicant’s evidence in his NCF and his subsequent screening interview contain inconsistencies which raise issues relating to his credibility that in the absence of oral evidence from him it was unable to form any view as to the credibility of his assertions of fact in his claim, and was therefore unable to determine whether there is a real chance that he would suffer the ill-treatment which he said he fears if refouled to Pakistan, and given the nature of such feared harm in his case, it concluded that the applicant has failed to establish his claim under any of the applicable grounds.  

12.On 2 November 2017 the applicant filed his Form 86 for leave to apply for judicial review but without stating whose decision that he wished to challenge, nor did he provide any ground for seeking relief in the Form nor ask for any oral hearing, while in his supporting affirmation of the same date he simply deposed that:

“ I Mubarak Ali currently detained at Castle Peak Bay Immigration would like to apply for judicial review because Immigration didn’t give me time to proof my claim. Immigration finish my claim on assumption and in absence of evidence. My life is really in danger in Pakistan that’s why I want time so that I can bring evidence or document so that I can complete my claim process. Kindly accept my request.”

13.By then the applicant was more than six months late with his Form 86, 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.Hence with the last date for making his application against the decision of the Board being 27 April 2017, the applicant was therefore late by more than six months with his Form 86.  Such a long delay must be regarded as excessive, and for which no explanation whatsoever has been provided by the applicant, nor does it appear to me to be any merit in his intended challenge in the absence of any ground being put forward either in his Form 86, or in his supporting affirmation as shown above with just some vague and groundless assertions without any particulars or elaboration.

15.The fact is that once it has been established 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 Director was entitled to conclude of no justification to afford the applicant with non-refoulement protection in Hong Kong, and I do not find any reason for usurping his role as the primary decision maker in the absence of any legal error being identified by the applicant: see TK v Jenkins & Anor [2013] 1 HKC 526.     

16.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.

17.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 reasons for his delay, I refuse to extend time and accordingly his leave application is dismissed.

Dated the 12^th day of July 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