Danish Arshad Mehmood Alias Danish Arshad Mohmood v. Torture Claims Appeal Board

HCAL 1235/2018

[2021] HKCFI 1597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1235 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 7 August 2017refused; 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 entered Hong Kong illegally on 29 October 2006 and was arrested by the police on 3 January 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 a local gangster over some personal dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sangh Mora Zildara, Jatlan Mirpur, Azad Kashmir, Pakistan. After leaving school he worked in various odd manual jobs, and later operated a shop in Jatlan Market repairing motor vehicles and bikes.

3.In about 2002 a local gangster in his home village made a marriage proposal to the Applicant’s mother for one of his relatives to marry one of her daughters but which led to an argument between them during which the gangster shot the Applicant’s mother who later died in the hospital.

4.Afterwards the gangster fled from the scene, and the matter was reported to the police, but when the Applicant was not happy with the progress of the police’s investigation, he went armed with a gun looking for the gangster in his home, and when he could not find the gangster, he fired a shot in the air to frighten the gangster’s family members in the house before he left.

5.Thereafter the Applicant feared of revenge from the gangster or his family, and therefore fled from his home village to take shelter in a friend’s place in Jhelum and later to Karachi where he stayed for several years without incidents before returning to his home village in October 2006, but when he was warned by his friend that the gangster may still be seeking to take revenge against him, and when he found he was being followed by strangers in the village, the Applicant felt it was no longer safe to remain in Pakistan, and so on 27 October 2006 he departed 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 Supplementary Claim Form (“SCF”) on 18 March 2014 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 16 January 2015 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the gangster upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from the gangster, that after all these years since he left Pakistan that it is doubtful that the gangster would still have any adverse interest in the Applicant, that it was a private and personal dispute between his family and the gangster 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 Karachi where he had stayed before without incidents and where it would be difficult if not impossible for the gangster to locate him.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 2 October 2015 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 2 December 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found even on the Applicant’s own case of no evidence of any ill-treatment or harm being inflicted on him by the gangster which may constitute any risk under any of the applicable grounds, that the credibility of his claim had been undermined by his failure to raise his claim upon his arrival in Hong Kong until more than one year later and only after he had been arrested by the police, and that in any event 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 move safely to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable ground.  

10.On 28 December 2016 the Director on his own initiative invited the Applicant 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 12 January 2017 also rejected the Applicant’s claim under BOR 2 Risk.

11.On 24 January 2017 the Applicant again lodged an appeal to the Board against the Further Decision of the Director, for which the Board did not find necessary to hold another oral hearing for the appeal, and on 7 August 2017 it dismissed the Applicant’s appeal upon finding that he had failed to submit any additional facts to establish a case under BOR 2 Risk, and also confirmed the Director’s Further Decision.

12.On 29 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date and also at the hearing of his application, he just stated that he is not satisfied with the decision as his life would still be in danger in his home country that he cannot go back but without putting forward any proper ground for his intended challenge.

13.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.

14.As the last day of the three-month period for him to file his Form 86 fell on 7 November 2017, the Applicant was therefore more than 7 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 the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKCA 393.

15.In the Applicant’s case, a delay of more than 7 months must be considered as very substantial and excessive, for which he explained at the hearing of his application that he had been detained at the Castle Peak Bay Immigration Centre (“CIC”) between March and August 2018 that he was unable to file his application until later but by then he was already out of time to do so.

16.The Applicant did not produce any documentary evidence in support of his assertion, but even assuming that he was indeed being detained at CIC during that time, as the record shows that the Board’s decision was sent on 7 August 2017 to his then reported address without being returned through undelivered post, and hence even on his own case that it was some 7 months prior to his alleged detention at CIC in March 2018, and that even thereafter when he was in detention at CIC that he was still able to file his Form 86 in June 2018. As such his explanation of being detained at CIC between March and August 2018 cannot by itself be accepted as any reason for his late application, let alone for such a serious delay.

17.As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forth 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 either.        

18.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.

19.In the present case, even on the facts of the Applicant’s own case at the highest, and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground in the Applicant’s claim, and as it has been established by both the Director and the Board in their earlier decisions 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.     

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 good reason for his serious 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