Muhammad Shahid v. Torture Claims Appeal Board

HCAL 2590/2018

[2021] HKCFI 2581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2590 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 38-year-old national of Pakistan who entered Hong Kong illegally on 10 March 2009 and was arrested by police on 29 March 2009. 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 4 murderers for reporting to the police about their crime. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kheli Darwaza, District Gujranwala, Punjab, Pakistan where he worked in buying and selling metal scraps and as an electrician.

3.In about 2007 one of his maternal uncles Nasir was killed by one of his cousins Faisal who later confided in him that it was he and his 4 companions who killed Nasir in revenge.

4.Later Faisal was arrested by police for the murder but his 4 companions were at large, and although the Applicant did not know their identities, they managed to call him on his phone and threatened him not to go to the police, and after one occasion when he was assaulted by two of them, the Applicant fled to Faisalabad for a month before returning to his home village, but when the threats continued, he decided that it was no longer safe to remain in Pakistan, and so on 7 March 2009 he departed for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 30 December 2014 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 (“Ordinance”) (“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”).

6.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 Faisal’s companions upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that after all these years since his departure from Pakistan 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 Karachi where it would be difficult if not impossible for Faisal’s companions to locate him.

7.On 14 January 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which he attended an oral hearing on 12 May 2016 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 17 February 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found many inconsistencies and contradictions in the Applicant’s evidence between those given to the Director and to the Board that it doubted the credibility of his claim, which was further damaged by his evasive answers to questions raised of his claim before the Board which was also based substantially on hearsay and speculations that it was not persuaded that the Applicant had ever been threatened or assaulted as alleged or that he will face any real risk of harm from anyone upon his return to Pakistan it concluded that his claim for non-refoulement protection failed on all applicable grounds.   

9.Meanwhile on 29 March 2017 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 20 April 2017 rejected the BOR 2 Claim of the Applicant upon finding that he failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

10.On 17 May 2017 the Applicant again filed an appeal to the Board against the Director’s Further Decision, but on this occasion he was outside the 14-day period required by Section 37ZS(1) of the Immigration Ordinance to file his notice of appeal, and in pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of his notice of appeal.

11.By a written notice dated 10 October 2018, the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding his explanation that he only received the decision on the day before his late filing unreasonable unsatisfactory and unacceptable, and that nothing in the factual basis of his original application for non-refoulement protection discloses any special circumstances by reason of which it would be unjust not to allow the late filing of his notice of appeal.    

12.On 19 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of a decision of the Board, but it is not clear which one that he intends to challenge, as he dated it to be 17 May 2017 but which is not the date of either decision of the Board, and as no ground for seeking relief was given in his Form, while in his supporting affirmation of the same date he merely repeated his claim that he cannot go back to his home country as he still has problem there without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

13.Given the fact that he is unrepresented, I propose to treat his application as one to challenge both decisions of the Board, but for the first one of 17 February 2017, the Applicant would be 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 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 against this first decision fell on 17 May 2017, the Applicant was therefore more than 18 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 18 months must be considered as extremely substantial and excessive, for which no explanation has been provided by the Applicant, 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 such serious delay of the Applicant. 

16.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 the Applicant, I do not find any reasonably arguable basis for or any merits in his intended application.

17.As for his intended challenge of the second decision of the Board dated 10 October 2018, the Applicant’s Form 86 was within the 3-month period under Order 53 rule 4(1) of the High Court Ordinance, but as noted above, he 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 to the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the Board’s refusal to allow the late filing of his notice of appeal.

18.In its decision the Board was in my view entitled to reject the Applicant’s explanation for his delay in the absence of any reliable evidence to corroborate his bare assertion of receiving the Director’s further decision late, while it is clear that it did also take into account all other relevant matters of fact within its knowledge as required by Section 37ZT(2) of the Immigration Ordinance including the merits of his appeal by reference to the factual basis of the Applicant’s original application for non-refoulement protection under the Unified Screening Mechanism (“USM”) which had already been considered and rejected by the same Adjudicator for the Board in its first decision.

19.In any event, given the fact that the Applicant had failed to submit any additional facts to the Director which might be relevant to his BOR 2 claim, and that on the factual basis of his case as stated in his claim and presented by his lawyer from DLS to the Director, and given the scope and threshold of a proper BOR 2 claim, it is plain that the Applicant’s claim would not have been found to engage the BOR 2 ground even if his notice of appeal had been filed within time and properly run before the Board. As such and for the reasons given, I do not find any reasonably arguable basis for his intended challenge against this second decision of the Board either.        

20.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.

21.In the Applicant’s case, the Board rejected his USM claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 64 – 79 of its first decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 finding of the Board.  

22.Furthermore, the fact is that it has been established by both the Director and the Board in their respective earlier decision that the risk of harm in the Applicant’s claim if true 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.     

23.In the premises and having considered all 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 any of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

24.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his leave application as regard either decision of the Board.

Dated the 2^nd day of September 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