Mukhtar Wilson v. Torture Claims Appeal Board

HCAL 2524/2018

[2021] HKCFI 2176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2524 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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  the Order of Deputy High Court Judge K.W. Lung dated 19 July 2019 dismissing the Applicant’s application for leave to apply for Judicial Review for want of prosecution be set aside;

2.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 23 July 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 43-year-old national of Pakistan who entered Hong Kong illegally on 2 June 2007 and was arrested by police on the same day. 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 Muslims for preaching Christianity to the local villagers. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Christian in Village Attoke, Awan Tehsil Batapur, District Lahore, Pakistan. After leaving school he worked in a restaurant and joined the local Christian youth group helping the local youths and preaching the Bible to them to help them to stay away from illegal drugs and gang activities.

3.However, in 2007 the local Muslim community started to resent the activities of the Applicant and his group, and after several incidents when he was attacked by some unknown men whom he suspected were Muslims against his religious practices, he became fearful for his life and fled to other towns, and on 29 May 2007 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 18 November 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 22 July 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”).

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 local Muslims 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, that reliable and objective Country of Origin Information (“COI”) show that Christians and other religious minorities in Pakistan are under protection of the law from discriminations and persecutions, and that with reasonable internal relocation alternatives 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 local Muslims to locate him.

6.By a Notice of Further Decision dated 3 February 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”).

7.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, but for which he failed to attend the scheduled hearing without explanation, and the Board proceeded to deal with his appeal in his absence and on paper. On 23 July 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board found the Applicant’s claimed threats or harms inflicted by the local Muslim community did not reach the level of severity of pain or suffering which would amount to torture, and that in the absence of any evidence of any state or official involvement that state/police protection would be available to the Applicant upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.   

9.On 9 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  that the Board failed to conduct inquiries from reliable sources and did not fully study the ground realities of the Applicant’s case and the aftermath in the event he was being forced to return to his home country;

(2)  that the Board just refused his appeal without any reasonable ground; and

(3)  that in the light of new law, relocation is practicably impossible as the fight against terrorism touches new high state protection in fact is non-exist, and hence the decision is based on a bias and formulaic approach without fairly assessing the danger to the Applicant’s life.  

10.However, when he failed to attend the scheduled hearing for his application on 19 July 2019, Deputy High Court Judge K.W. Lung dismissed his application for want of prosecution but gave him liberty to apply to set aside the order.

11.On 7 May 2020 the Applicant issued a summons to apply for leave to appeal against the said order, and in his supporting affirmation he explained that he never had any intention not to attend the hearing of his leave application, and challenged the court’s decision in dismissing his application as unfair without allowing him an opportunity to clarify his situation in his home country or to explain his case.

12.Perhaps due to the current Covid-19 pandemic when the courts had been closed down for several months during the material time, the Applicant’s summons was not fixed for hearing until now before me, but again he failed to attend the hearing scheduled on 25 September 2020 without any explanation.

13.Given the fact that the order of 19 July 2019 has given the Applicant liberty to apply to set it aside, and that the Court of Appeal has subsequently in Re Abdus Salam, [2019] HKCA 1091, CACV 125/2019, 3 October 2019 held that the mere fact that an applicant failed to attend at the oral hearing of his application for leave to bring judicial review proceedings does not necessarily mean that he does not intend or wish to pursue his application, that it is not essential for an applicant to attend an oral hearing in such an application, that striking out for want of prosecution is a remedy of last resort, and that for this type of application and in such situation, the appropriate course would be for the court to proceed to deal with the application on its merits based on the material already placed before it.

14.In the circumstances of the Applicant’s case, and in applying these principles, I accordingly treated his summons as one for setting aside the order of 19 July 2019, and proceeded to set it aside, and to consider his application for leave to apply for judicial review of the Board’s decision in his absence by considering the merits of his proposed grounds for his intended challenge.

15.However, he was by then 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 day 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.

16.As the last day of the three-month period for the Applicant to file his Form 86 fell on 23 October 2018, he was therefore late by 17 days 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.

17.In the Applicant’s case, a delay of 17 days cannot be regarded as insignificant, for which he failed to provide any explanation in his application or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his delay.

18.As for the merits, if any, of his intended application, the Applicant’s proposed grounds for his intended challenge as set out above are however just broad and vague assertions of his containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board had erred in its decisions, or how did it fail to conduct proper inquiries on the actual situation in Pakistan when it is plain that it did refer to the various relevant COI in assessing the availability of the law to protect religious minorities from persecutions as well as the availability of state protection and internal relocation to the Applicant upon his return to Pakistan, while it did also provide in details its analysis of the Applicant’s claim and reasoning in its decision for rejecting his claim and appeal. As such and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant or that they are clearly factually incorrect, I do not find any of them reasonably arguable for his intended challenge.

19.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.

20.Furthermore, the fact is 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.

21.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.

22.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 2^nd day of August 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