Ahmed Jamil v. Torture Claims Appeal Board

HCAL 1500/2018

[2021] HKCFI 1409

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1500 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 oral submissions by (counsel for) the Applicant in open court / 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 2 February 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 42-year-old national of Pakistan who entered Hong Kong illegally on 13 October 2013 and was arrested by police on the same day. 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 gangsters associated with the political party Muttahida Qaumi Movement (“MQM”) who had murdered his sister and her husband due to their involvement in rival party Pakistan Sunni Tehreek (“PST”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Lyari Kambela, Karachi, Pakistan. After leaving school he got married and raised a family of 4 children, and ran his mobile phone shop in his home district in Karachi.

3.The husband of his sister was a member of PST who was influential in the area in getting the local people to vote for PST, and to whom supporters of rival MQM had become hostile and had made threats against him and his family.

4.One day in April 2011 the Applicant’s sister and her husband were found murdered by gangsters associated with MQM, and with evidence from the Applicant given to the police and in court that those gangsters were subsequently arrested by police and were convicted for the murders and sentenced to prison.

5.However, somehow some of those gangsters were released from prison some two years later and threatened to kill the Applicant in revenge, and so in fear for his life the Applicant in October 2013 departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a non-refoulement Claim Form (“NCF”) on 7 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 6 June 2016 the Director of Immigration (“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 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”).

7.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 those gangsters or the MQM people upon his return to Pakistan as low due to the low intensity and frequency of  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 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 working experience to move to other areas of Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for him to be located.

8.By a Notice of Further Decision dated 10 July 2017 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”).

9.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 20 June 2016, and for which he attended an oral hearing on 8 December 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 2 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found that the Applicant may have received threats from those local gangsters from his home district but no evidence of any state or official involvement that state/police protection would be available to him upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other areas away from his home district in large cities such as Lahore without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

11.On 30 July 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 stated that the Board’s decision is unfair in rejecting his appeal but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

12.He was however by then also out of time with his intended 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.

13.As the last day of the three-month period for him to file his Form 86 fell on 2 May 2018, the Applicant was therefore almost 3 months 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 eth intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.In the Applicant’s case, a delay of almost 3 months must be considered as substantial or excessive, for which he did not provide any explanation, and as the record shows that the Board’s decision was sent on the same day to his last reported address and that it has never been returned through undelivered post, I do not see any good reason for his significant delay.

15.As for the merits, if any, of his intended application, as noted above, the Applicant has not put forward any proper grounds for his intended challenge, and in the absence of any error of law or irrationality 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 merits in his intended application.

16.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.

17.In the Applicant’s case, 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 his 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.     

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 18^th day of May 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