Akram Mohammad v. Torture Claims Appeal Board

HCAL 1062/2020

[2021] HKCFI 558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1062 of 2020

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 absent in open court;

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 22 January 2015 refused; and

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

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Pakistan who arrived in Hong Kong on 10 July 2001 with permission to remain as a visitor up to 17 July 2001 when he failed to depart and instead overstayed, and was arrested by police on 24 March 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the local supporters of rival political party All Jammu and Kashmir Muslim Conference (“AJKMC”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kas Kalyal, Tehsil & District Mirpur, Azad Jammu and Kashmir, Pakistan. After leaving school he assisted in his father’s clothing business and followed his family’s tradition to support the political party Pakistan Peoples Party (“PPP”) by regularly assisting in providing transportation and venue for their meetings.

3.One day in late 1998 during a local election between PPP and AJKMC, while the Applicant and his fellow PPP supporters were attending their meeting, they were attacked by a group of AJKMC supporters causing many injuries but the Applicant managed to escape unharmed, but when he later heard that the AJKMC people were looking for him, he became fearful for his life and therefore fled to Hyderabad where he stayed and worked for 6 months without incidents, but when he learnt that he had been spotted by the AJKMC people, he then fled to Lahore and then Islamabad, and from there he departed in July 2001 for Hong Kong where he overstayed, and later when he was arrested by police in 2008, he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 27 May 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

4.By a Notice of Decision dated 23 June 2014 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 the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

5.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 the AJKMC people upon his return to Pakistan as low due to doubt over the credibility of his claim due to the inconsistencies and discrepancies found in the information provided by him and that in any event due to the absence of any past ill-treatment from them, 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 196 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 working experience to move to other part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for those AJKMC people to locate him.

6.On 4 July 2014 the Applicant 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 24 September 2014 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 22 January 2015 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found serious contradictions and inconsistencies in the Applicant’s evidence as to his claim that it doubted his claimed fear of harm from the AJKMC people, that in any event in the absence of any physical harm being inflicted on him by the AJKMC people and with state/police protection available upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located by those AJKMC people that his claim for non-refoulement protection failed on all applicable grounds. 

8.On 22 October 2015 the Applicant filed a Form 86 in HCAL 205/2015 for leave to apply for judicial review, but instead of the Board’s decision, he stated clearly that it was the Director’s decision of 23 June 2014 that he wanted to challenge, and after hearing him in court when he confirmed that it was the Director’s decision that he wanted to seek leave for judicial review, P Li J refused his leave application on 2 June 2016 upon finding no exceptional circumstances to justify his such departure from the general rule.

9.On 23 June 2016 the Applicant sought extension of time from the Court of Appeal to appeal against the decision of P Li J, but his application was refused on 10 August 2016 under HCMP 1601/2016 when Lam VP found that his application for judicial review in HCAL 205/2015 was bound to fail as he should have sought a review of the decision of the Board instead of the decision of the Director.      

10.Meanwhile on 14 December 2016 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider 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”), and in the absence of any response from the Applicant, the Director by a Notice of further decision dated 4 January 2017 considered that he had failed to establish a personal and real risk of his BOR 2 rights being violated upon his return to Pakistan and accordingly rejected his BOR 2 claim.

11.The Applicant did not lodge any appeal to the Board against this further decision of the Director, and instead on 1 June 2020 he filed a Form 86 in these proceedings now before me for leave to apply for judicial review of a decision which he dated at 6 November 2016, but it is clear from above that neither the Director nor the Board has ever made any decision on such date, while in his supporting affirmation he stated that he wants “to appeal against the decision of the Appeal Board and the judicial review result”.  

12.Given the fact that there is only one decision of the Board made on 22 January 2015, and perhaps following what Lam VP had stated in the Court of Appeal’s decision as referred to above [9], I take it that the Applicant actually meant to apply for judicial review of this decision of the Board, and accordingly proceed to deal with his application as such, but for which he did not put forward any ground for seeking relief either in his Form or his affirmation of the same date for his intended challenge, nor did he attend the scheduled hearing of his application without any explanation.

13.By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, 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.As the last day of the three-months period for him to file his Form 86 regarding the Board’s decision of 22 January 2015 fell on 22 April 2015, the Applicant was therefore more than 5 years 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 merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see AW v Director of Immigration [2016] 2 HKC 393.

15.In the Applicant’s case, a delay of more than 5 years must be considered as extremely substantial and excessive, for which he did not provide any explanation, nor did he attend the hearing scheduled for his application on 13 August 2020 without any reasonable cause, and even if one were to assume that he only became aware of the proper cause to challenge the decision of the Board after receiving the Court of Appeal’s decision of 10 August 2016, I still do not see why he would have taken more than 3 years until 1 June 2020 to file his Form 86. In the circumstances, I do not find any valid reason for his such serious delay with his application.

16.As for the merits, if any, of his intended challenge, as noted above he did not put forward any proper ground for his intended challenge. As such 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 the Applicant, I do not find any reasonably arguable basis for his intended challenge.         

17.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.

18.In the Applicant’s case, the Board rejected his claim on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 15‑27 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim by the Adjudicator for the Board, 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 the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

19.Furthermore, 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

20.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.

21.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 valid reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 4^th day of March 2021.

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