Haider Usman v. Torture Claims Appeal Board

HCAL 363/2019

[2021] HKCFI 3702

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 363 of 2019

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:

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

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

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Pakistan who entered Hong Kong illegally on 19 November 2007 and was arrested by police on 21 November 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 supporters of the political party Pakistan Muslim League (Q) (“PML(Q)”) as he supported their rival Pakistan People’s Party (“PPP”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Rangpura, Sialkot, Pakistan.  After leaving school he worked in the factory, and in 2005 started to support PPP in which his brother was one of their candidates for the local elections.

3.In April 2005 while he accompanied his brother to attend a party meeting with other PPP members, they were confronted by a group of PML(Q) supporters armed with weapons who proceeded to attack the Applicant and his brother while the other PPP supporters were too frightened to help until the assailants left and the Applicant and his brother were rushed to the hospital for emergency treatments.

4.After their discharge from hospital, the Applicant and his brother fled to Faisalabad to take shelter in a friend’s place while his brother also quitted being a candidate for PPP, and after staying there for 6 months without incidents that they eventually returned to their home district in Sialkot in December 2005.

5.However, as his brother still feared for his safety and therefore left the country in 2006 for Saudi Arabia, but when those PML(Q) supporters were unable to find him, they started to make threats against the Applicant and his father, and so the Applicant again fled to Faisalabad in April 2007, and then to Islamabad, and on 14 November 2007 he departed Pakistan for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 December 2014 and Answers to Question Sheets dated 13 March 2015 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any of the scheduled screening interviews before an immigration officer due to various alleged reasons.

6.By a Notice of Decision dated 16 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”).

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 those local PML(Q) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that they were after his brother but after his brother had quitted PPP and left the country all these years that there was no reason for them to have any interest in the Applicant, 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 where it would be difficult if not impossible for those local PML(Q) supporters to locate him.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing before the Board without any explanation, and as a result the Board decided, wrongly in my view, that it was unable to estimate what risks if any that the Applicant would face if refouled to Pakistan, or to decide whether or not he was entitled to non-refoulement protection under the applicable grounds. 

9.Notwithstanding the non-attendance of the Applicant for his appeal hearing, it is clear that the Board should have proceeded to consider and determine his claim in his absence and on paper based on those information and material previously submitted by the Applicant to the Director and were available before the Board, but for the reasons which will be apparent below, this error of the Board would not assist or advance the Applicant’s case in his application now before me.    

10.Meanwhile on 31 October 2016 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”), and upon receiving and considering additional submission form him, the Director by a Notice of Further Decision dated 5 December 2016 rejected the Applicant’s 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.

11.On 19 July 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, and while it was filed out of time, the Board allowed its late filing and arranged for him to attend an oral hearing on 16 April 2016 before the Board which he did on this occasion and for which he also gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 23 May 2018 his appeal was again dismissed by the Board which also confirmed the second decision of the Director.

12.Unlike in its earlier decision, for this appeal the Board did fully consider the Applicant’s claim not just under BOR 2 Risk but also all the other applicable grounds as well including torture risk, BOR 3 risk and persecution risk based on both the information previously submitted by the Applicant and additional facts raised by him in this appeal and his oral evidence given in his appeal hearing, but found no reason for those PML(Q) to still have any adverse interest in the Applicant after both he and his brother had left the country all these years or any reliable evidence that they are still going after the Applicant, and that in any event that such risk as claimed by the Applicant was confined to his home district that it would be safe for him to relocate to other part of Pakistan without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.          

13.On 11 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the second decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he does not agree with the decision as he cannot go back to his home country where his life is in danger but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

14.By then the Applicant was also 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.

15.As the last day of the three-month period for the Applicant to file his Form 86 fell on 23 August 2018, he was therefore more than 5 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 HKC 393.

16.In the Applicant’s case, a delay of more than 5 months must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or his affirmation, and as the record shows that the Board’s 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 serious delay.  

17.As for the merits, if any, of his intended application, as noted above the Applicant has failed to 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 merits in his intended application either.

18.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.

19.In the Applicant’s case, the Board did in its second appeal properly and fully consider his claim under not just BOR 2 risk but all the applicable grounds and upon which it rejected his such claim for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 42 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, thereby making proper rectification of its error committed in its earlier decision regarding the Applicant’s first appeal, and in the absence of any error of law or procedural unfairness in this appeal of his before the Board or in this decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

20.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.   

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 serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 8^th day of December 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