Naveed Jan v. The Petition Teams (Security Bureau)

HCAL 593/2018

[2020] HKCFI 1781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 593 of 2018

BETWEEN

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:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 5 January 2018 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.The Applicant is a 25-year-old national of Pakistan who entered Hong Kong illegally on 29 November 2014 and was arrested by police on 10 December 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 the Taliban as his family failed to pay them extortion money.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Mohmand Agency, KPK Province, Pakistan.  During the war in Afghanistan in 2002, many Taliban fighters came to take shelter in their neighbourhood, the Applicant’s father therefore moved his family away to Peshawar City where he started an automobile spare parts business.

3.One day in late 2005 his father received a phone call from someone claimed to be Taliban to demand donations to finance their war in Afghanistan but his father refused, and several months later his father was alarmed to hear that a friend of his who also rejected such a demand from the Taliban had subsequently been killed.

4.As his father continued to receive such threatening phone calls, and when his father also found himself being followed by suspicious strangers in the street, his father disposed of his business in Peshawar City and in late 2007 moved the family to Doghra in Rawalpindi City.

5.One day in 2011 his father was abducted by the Taliban and was released only after his family had paid a ransom, but three years later one day in 2014 when a man who claimed to be the Taliban demanded money from his father, his father arranged to send his children out of Pakistan away from the Taliban’s threats by sending the Applicant’s elder brother to Dubai and the Applicant to China on 20 November 2014, and from there the Applicant later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 2 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 9 January 2017 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 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 the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by the Taliban upon his return to Pakistan due to the absence of any past ill-treatment from them, that even on his own case that he had never met any Taliban prior to his departure of Pakistan let alone being threatened by any of them, 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 201 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 young adult to move to other part of Pakistan away from his home district in large cities such as Sialkot in Punjab Province or Hyderabad in Sindh Province where there have been no report of Taliban activities and where it would be difficult if not impossible for the Taliban to locate him.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 28 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 5 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found even on the Applicant’s own case that whatever threats or harm in the past was directed against his father and that neither he nor his brother had ever been victimized in any way, and that in any event according to the latest COI that Taliban activities in Pakistan have since been greatly reduced that there is no reason to think that the Applicant would be identified, targeted, harassed or harmed by the Taliban upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds. 

10.On 10 April 2018 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, and in his supporting affirmation of the same date he merely repeated his claim of fear of harm from the Taliban but without putting forward any proper ground for his intended challenge.  Nor did he request any oral hearing for his application.

11.By then he was however also out of time with his application, as Order 53 rule 4(1) 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.

12.As the last day of the three-month period for him to file his Form 86 fell on 5 April 2018, the Applicant was therefore 5 days 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 merit of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

13.In the Applicant’s case, a delay of 5 days may not be considered as significant, and while he did not provide any explanation for his delay, I propose to focus on the merit, if any, of his intended application.

14.However, as noted above, the Applicant did not provide any proper ground for his intended challenge either, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by him, I do not find any reasonably arguable basis or merit in his intended application to challenge the finding of the Board.

15.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. 

16.In the Applicant’s case, as pointed out by the Board, even accepting everything he claimed to have occurred to his father regarding threats from the Taliban, it is for the Applicant to put forward some factual basis to support his claim which must be personal to him in terms of knowledge or experience because, as it has been said repeatedly in CAT jurisdiction, the mere existence of a consistent pattern of gross, flagrant or mass violations of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return: Re RS, CACV 206/2012, 20 August 2013.  Accordingly the Board was correct to find that even on his own case the Applicant failed to show that he will be personally at risk of harm from the Taliban upon his return to Pakistan, and I do not find any reasonably arguable basis for him to challenge such finding of the Board.

17.Furthermore, the fact that it has been established by the Director in his 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, a decision also confirmed by the Board, 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 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 his delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 4^th day of August 2020. 

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