Zahoor Ahmad Alias Zahoor Ahmed v. Torture Claims Appeal Board

HCAL 1234/2018

[2021] HKCFI 1596

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1234 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 the Applicant 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 March 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 41-year-old national of Pakistan who entered Hong Kong illegally on 8 October 2005 and was arrested by the police on 13 December 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his uncle over a land dispute in their home village, and after he had subsequently withdrawn his torture claim, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Chak Muhglan, Jhelum, Punjab, Pakistan. After leaving school he worked in his father’s farmland in his home district but which was coveted by his uncle, and one day in about 2004 the Applicant and his brother were abducted by his uncle to force his father to give up the farmland to his uncle, but they were subsequently rescued by his father.

3.Several days later the Applicant was arrested by the police after his uncle had made some false charges against him, and although he was released a few days later without charge, the Applicant remained fearful of further harassments and threats from his uncle, and therefore fled to Gujrat to take shelter at a relative’s place, and from there he then departed Pakistan for China. After staying in China for one year, he then sneaked into Hong Kong in October 2005, and upon his subsequent arrest by the police, he raised his torture claim, and after it was withdrawn he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 5 May 2016 with legal representation from the Duty Lawyer Service (“DLS”) and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 28 March 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the other applicable grounds except torture risk including 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”).

5.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 his uncle and his followers upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was a private land dispute between them 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”) shows 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 parts of Pakistan away from his home district in large cities such as Lahore or Islamabad where it would be difficult if not impossible for his uncle to locate him.

6.On 11 April 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 15 January 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 2 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board accepted the Applicant’s claim of threats from his uncle over the land dispute but found in the absence of any 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 safely move to other areas away from his home district without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.     

8.On 29 June 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 or in his supporting affirmation of the same date for his intended challenge.

9.By then the Applicant was 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.

10.As the last day of the three-month period for him to file his Form 86 fell on 2 June 2018, the Applicant was therefore 27 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 merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKCA 393.

11.In the Applicant’s case, a delay of 27 days on top of the 3 months allowed by the rules must be regarded as significant, for which he explained at the hearing of his application that after receipt of the Board’s decision, he applied for legal aid for legal representation to challenge the decision, but by the time his application was refused, and that he had had to seek help from his friend, he was already out of time with his intended application.

12.The Applicant however did not provide any further details or particulars of his alleged legal aid application such as the dates of his application and rejection or any documentary evidence such as the notice of refusal of legal aid to corroborate his bare assertions. In the circumstances I am not satisfied that he has provided any good or valid reason for his delay.

13.As for the merits, if any, of his intended application, as noted above he did not provide any proper ground for his intended challenge in his Form or supporting affirmation, and at the hearing he merely repeated his claim that his problem still exists and therefore he cannot return to his home country. As such 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 reasonably arguable basis for his intended challenge.     

14.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. 

15.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 parts 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.     

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

Dated the 3^rd day of June 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