Shah Syed Arif v. Torture Claims Appeal Board

HCAL 1749/2020

[2021] HKCFI 2277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1749 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 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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 38-year-old national of Pakistan who entered Hong Kong illegally on 15 January 2007 and was arrested by police on 28 October 2007. 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 certain local Shia Muslims in his home village for suspecting him to have been involved in a bombing of their worship place in the village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Sunni Muslim in Village Sheen, Bagh Khurd, Tehsil and District Attock, Pakistan where the majority of the Muslims in his home village were Shias.

3.In 2002 he left his home village to work in Lahore, and in the summer of 2003 when he returned to his home village to visit his family, a bomb exploded in the Shia worship place causing many casualties, and for which the Shias villagers became suspicious of the Sunni villagers and started to accuse them of being responsible for the bombing, and after one occasion when some Shia villagers came to the Applicant’s home looking for him, and when his parents told them that he was not in, they then fired gun shots to the air and damaged the front door which injured his father’s leg.

4.After learning of the incident, the Applicant fled to Peshawar before returning to his job in Lahore, but one day in October 2006 when he ran into a Shia from his home village in the neighbourhood that he became fearful that the Shias from his village had come looking for him in Lahore, and so he departed Pakistan in November 2006 for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.Whilst being released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 6 April 2014 for drugs trafficking for which he was subsequently convicted on 25 August 2015 and was sentenced to prison for 10 years.      

6.By a Notice of Decision dated 28 November 2016 the Director of Immigration (“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 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”).

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 the local Shias in his home village upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he had been specifically targeted by those local Shias, that in any event after all these years since his departure that it is doubtful that they would still have any adverse interest in him, 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 Islamabad or Karachi where it would be difficult if not impossible for those local Shias to locate him.

8.On 16 March 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his notice of appeal was by then clearly outside the 14-day period required for its filing under Section 37ZS(1) of the Immigration Ordinance, and pursuant to Section 37ZT(2) the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s notice of appeal.

9.By a written decision dated 21 July 2020 the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that it had been seriously late by more than 3 years, that his explanations of being illiterate and ignorant of the rule and being in the prison were not valid or good reasons for such serious delay, that that were no merits in his appeal against the Director’s correct findings that the risk in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, and concluded that there were no special circumstances that would make it unjust not to allow the late filing of his notice of appeal.      

10.On 31 August 2020 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 just stated that the decision is unfair and unreasonable but without providing any particulars or elaboration of how it was so, nor did he put forth any other proper ground for his intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in his appeal to 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. 

11.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.

12.In the Applicant’s case, the Board refused to allow the late filing of his notice of appeal for the thorough and detailed analysis and reasoning set out in paragraphs 20 – 36 of its decision including a proper consideration of the merits of his appeal in accordance with the Court of Appeal’s decisions of Re Qasim Ali [2019] HKCA 430 and Re KhanKamal Ahmed[2019] HKCA 377 as well as its correct assessment of no special circumstances to justify such serious delay of his notice of appeal, 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 findings of the Board.  

13.The fact is that it has been established by both the Director and the Board in their respective decisions 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.     

14.Having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness or any failure on its part to apply high standards of fairness in its consideration and refusal to allow the seriously late filing of the Applicant’s notice of appeal.

15.Furthermore, the Applicant on 23 April 2021 wrote to the court requesting to withdraw his application as his problems in his home country have been settled and that he wants to return to Pakistan.   

16.In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that the basis for his claim no longer exist, I therefore accede to his request and accordingly dismiss his leave application.

Dated the 5^th 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