Waseem Muhammad v. Torture Claims Appeal Board

HCAL 2059/2018

[2021] HKCFI 2173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2059 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 application for leave to apply for Judicial Review be reinstated;

2.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 1 December 2016 refused; and

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

Observations for the Applicant:

1.The Applicant is a 34-year-old national of Pakistan who was arrested by police on 27 August 2009 for illegally entering and remaining in Hong Kong, and 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 his paternal uncles and aunt over a land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Lahore, Pakistan where his father inherited a piece of land from his grandfather but which was disputed by his 2 paternal uncles and a paternal aunt over the distribution of the grandfather’s estate that had led to frequent conflicts between the families, and after one such confrontation in June 2009 between the Applicant and his uncles and aunt which turned violent when the Applicant was assaulted by the 3 of them and sustained injuries, he became fearful for his safety and fled to Islamabad where he made arrangements to depart Pakistan, which he did in August 2009 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 11 December 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

3.By a Notice of Decision dated 24 February 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”).

4.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that the perceived risk of harm from his uncles and aunts upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that it was a private family dispute over land in their home district 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”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 193 million people spread across a vast territory of more than 800,000 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 his uncles and aunts to locate him.

5.On 6 March 2015 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 4 February 2016 before the Board but declined to give any further oral evidence regarding his claim or appeal or to answer questions raised of his claim by the Adjudicator for the Board. On 1 December 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

6.In its decision the Board found no reliable evidence that the Applicant had been seriously assaulted or ill-treated by his uncles and aunt over their land dispute and doubted the credibility of his claimed fear of harm from them as his reason for leaving Pakistan for Hong Kong, and that in any event with reasonable internal relocation within Pakistan for him to safely move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

7.Meanwhile the Director on 16 January 2017 on his own initiative invited the Applicant to submit any 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 the Applicant, the Director by a Notice of Further Decision dated 6 February 2017 rejected his BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

8.The Applicant did not lodge any appeal to the Board against that Further Decision of the Director, and on 27 September 2018 he filed his Form 86 for leave to apply for judicial review of the Board’s earlier decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just attached a copy of the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

9.Before his application could be heard by the court, the Applicant through the Director informed the court on 29 August 2019 that he wanted to withdraw his leave application, and on 25 September 2019 his application was allowed to be withdrawn.

10.However, on 28 April 2021 he issued a summons for leave to re-instate his leave application, and in his supporting affirmation he claimed that after his application had been withdrawn, he later learnt from his family in Pakistan that his enemies back home still intend to harm or kill him, and so he seeks to re-instate his application.   

11.The Applicant did not appear at the hearing of his summons, and given the fact that his leave application had never been formally disposed of as to its merits, and in order to save time and costs, I allow the reinstatement of his application, but note that when the Applicant first filed his Form 86 on 27 September 2018, he was already seriously 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 3 months form 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.

12.As the last day of the 3-month period for him to file his Form 86 fell on 1 March 2017, the Applicant was therefore more than 1 ½ years 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.

13.In the Applicant’s case, a delay of more than 1 ½ years must be considered as extremely substantial and excessive, for which he did not provide any explanation, and as he also failed to attend the hearing of his summons without any explanation, I do not see any good reason for his serious delay.

14.As for the merits, if any, of his intended application, as noted above the Applicant has not put forth any proper ground 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 eth Applicant, I do not find any reasonably arguable basis for his intended challenge.

15.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.

16.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 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.     

17.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.

18.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 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