Khan Amir v. Torture Claims Appeal Board

HCAL 2211/2018

[2021] HKCFI 3548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2211 of 2018

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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.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 29 October 2015 refused; and

2.  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 entered Hong Kong illegally on 28 March 2009 and was arrested by police on 3 May 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 a group of Taliban for selling pornographic materials in his shops in his home district.  He was subsequently released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Formuli, Attock, Punjab, Pakistan. After leaving school he ran a business selling mobile phones and accessories as well as compact discs and videos including those with pornographic materials in his shops in Attock City. 

3.However, in early 2008 a man claimed to be the Taliban came into the Applicant’s shop to demand that he stopped selling pornographic videos, and when the Applicant refused, the man warned him that there would be serious consequences before he left, and several months thereafter, a group of armed men claiming to be the Taliban came and beat the Applicant into unconscious.      

4.After the beating the Applicant became fearful for his life and fled to Rawalpindi to take shelter in his aunt’s home where he stayed for months without incidents, but later when he heard that the Taliban were still looking for him, he therefore departed Pakistan on 16 March 2009 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 Non-refoulement Claim Form (“NCF”) on 23 April 2014 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 arrested by police again on 7 August 2013 for undertaking unauthorized employment for which he was subsequently convicted and sent to prison for 14 months.

6.By a Notice of Decision dated 26 January 2015 the Director of Immigration (“The 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Taliban upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that even on the basis of the Applicant’s own case that those Taliban people only wanted him to stop selling pornographic materials and given that he had since closed down his business and after all these years that there is no reason for the Taliban to have any further adverse interest in him, that in any event 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 Rawalpindi where he had stayed before without incidents and where it would be difficult if not impossible for those Taliban to locate him.

8.On 6 February 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, and for which he attended an oral hearing on 5 August 2015 before the Board but declined to give any further oral evidence or to answer questions raised of his claim by the Adjudicator of the Board.  On 29 October 2015 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board in the absence of the Applicant’s oral evidence or answers to questions raised of his claim doubted the credibility of his claim of fear of harm in Pakistan that caused him to come to Hong Kong, that such credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until only after his subsequent arrest 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 safely move away from his home district to other area without any risk of being located by the Taliban that his claim for non-refoulement protection failed on all applicable grounds.

10.Meanwhile on 10 January 2017 the Director on his own initiative in writing 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”) being violated, and in the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 25 January 2017 rejected his BOR 2 claim upon finding that he had failed to establish a personal and real risk of his BOR 2 Risk being violated upon his return to Pakistan.

11.The Applicant never brought any appeal to the Board against this further decision of the Director, and on 11 October 2018 he filed a Form 86 for leave to apply for judicial review of the earlier decision of the Board made on 29 October 2015, and in his supporting affirmation of the same date he produced several pages of legal principles and laws on non-refouleemnt claims without any meaningful elaboration as to how they apply to his case, but from amongst those pages it seems that he has put forth the following grounds or complaints for his intended challenge:

(1)     that there was no reasonable basis for rejecting his claim on credibility;

(2)     that it failed to consider the extended form of state acquiescence;

(3)     that it failed to fully consider the COUI reports in assessing the risk to the Applicant;

(4)     irregularity of the decision-maker being a different person than the interviewing officer;

(5)     procedural impropriety/unfairness in failing to investigate into the COI of Pakistan;

(6)     irregularity in failing to place weight on relevant information or selectively placing weight on irrelevant information;

(7)     irrationality in failing to consider a consistent system of human rights violations in Pakistan;

(8)     irrationality in failing to consider if state protection exists in Pakistan;

(9)     procedural impropriety in failing to call for psychological or psychiatric reports or evaluations of the Applicant’s claim;

(10)     procedural impropriety in applying the incorrect standard of proof; and

(11)     that there was no proper basis for consideration of internal relocation.   

12.By then the Applicant was however seriously out of time with his application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A 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.

13.As the last day of the three-month period for the Applicant to file his Form 86 for judicial review of the Board’s decision fell on 29 January 2016, he was therefore more than 32 months (2 years and 8 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] HKC 393. 

14.In the Applicant’s case, a delay of more than 28 months must be considered as extremely inordinate, for which he did not provide any explanation in his Form or affirmation, nor did he attend the scheduled hearing of his application without any explanation, and as the record shows that the decision was sent on the same day to his then last reported address without being returned through undelivered post, I do not see any good reason for his such serious delay. 

15.As for the merits, if any, of his intended application, those grounds put forth by the Applicant as stated above are however all 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 apply to his case or how the Board or the Adjudicator had erred in the decision, or how did the Board apply the incorrect standard of proof, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy is state acquiescence to his claim, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, while the whole purpose for his appeal to the Board to be heard before a different Adjudicator was to safeguard fairness in the two-tier screening process for his non-refoulement claim under the system.  As such and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

16.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. 

17.In the Applicant’s case, the Board rejected his claim partly on its adverse finding on his credibility for the reasons set out in paragraphs 34 - 37 of its decision which is essentially on the bases of an admission made by him to a police officer that he came to Hong Kong to look for jobs when he was arrested in May 2009 for illegal entry, and of his election to remain silent during his appeal hearing before the Board and hence he failed to explain certain concerns of the Board over his claim, but it is not at all clear from the Board’s decision whether those concerns raised in the rhetorical questions set out in paragraph 37 of the decision had actually been put to the Applicant during the hearing notwithstanding his decision to remain silent, and while the Board was entitled to rely on Section 37ZD(1) of the Immigration Ordinance to take into account the Applicant’s behavior such as his said admission to the police of coming to Hong Kong to look for jobs or his failure to raise his claim when he first arrived in Hong Kong until his later arrest as damaging his credibility, it is clear that the Board would still be required to make proper findings as to the Applicant’s stated claim of fear of harm from the Taliban based on the information and materials available before it notwithstanding the absence of any oral evidence from the Applicant at his appeal hearing, but which this Adjudicator did not appear to have done so.  

18.It also seems to me extravagant and unnecessary for the Board to take the trouble of calling the arresting police officer some 6 years after the arrest to appear before the Board in the Applicant’s appeal hearing just to confirm what the Applicant had said as noted above when there is no suggestion of any issue being raised by the Applicant or in his Notice of Appeal (see [4] of the decision).         

19.Nevertheless, I am not satisfied that there is any real merits in the Applicant’s intended application, as apart for his own failure to put forth any reasonably arguable basis for his intended challenge as noted above or to clearly and properly identify any error of law or procedural unfairness in his process before the Board or in its decision, it has been established, properly and correctly in my judgment, 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.                 

20.In the premises, and for the reasons given, 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 24^th day of November 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