Muhammad Qasim Bhatti v. Torture Claims Appeal Board

HCAL 3664/2019

[2022] HKCFI 41

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3664 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:

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

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Pakistan who entered Hong Kong illegally on 18 January 2008 and was arrested by police on 23 January 2008. 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 uncle and his sons over a property 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.  After leaving school he worked in a factory in his home district where his father and his uncle owned three properties which had been let out for rental income.

3.Upon the passing of his father in 2007, the Applicant and his brother stood to inherit his father’s title and interest in the properties, but when he approached his uncle for their share of the rental income collected on the properties since the death of his father, his uncle refused and together with his sons proceeded to attack the Applicant, and also threatened him not to return with a pistol.  

4.After another confrontation with his uncle during which the Applicant fought with one of his sons, the Applicant feared of further attacks or reprisals from his uncle and sons and therefore left town to take shelter in a friend’s place in Rawalpindi, but when he later received further threats from his uncle, the Applicant felt that it was no longer safe to remain in Pakistan, and so on 23 December 2007 he departed for China, and from there he sneaked into Hong Kong, and later upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 1 August 2015 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any scheduled screening interview before an immigration officer due to alleged health reasons.

5.Whilst being released on recognizance pending determination of his claim, the Applicant had been arrested and convicted on seven occasions for various criminal offences including possession of dangerous drugs, criminal damage, arson and wounding with intent, and was sentenced to prison for various terms totaling almost 4 years.               

6.By a Notice of Decision dated 25 September 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 his uncle and his sons upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that his problem with his uncle and sons was a private family property dispute 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 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 Gujrat or Sargodha where it would be difficult if not impossible for his uncle and sons to locate him.

8.On 13 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 in the absence of any response from him, the Director by a Notice of Further Decision dated 1 November 2016 also 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 being violated upon his return to Pakistan.

9.By then the Applicant was in the course of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal which was filed on 8 October 2015, but for which he failed to attend the scheduled oral hearing for his appeal before the Board without any explanation, and the Board therefore proceeded to deal with his appeal in his absence and on papers.  On 25 April 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director upon finding that the Applicant had failed to establish his claim under all the applicable grounds.  

10.On 9 December 2019 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 he does not agree with the decision as his life is still in danger in his home country that he does not want to go back but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

11.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 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 three-month period for him to file his Form 86 fell on 25 July 2017, the Applicant was therefore more than 2 years late with his application, for which he has failed to provide any explanation for such inordinate delay, nor as noted above has he put forth any proper ground for his intended challenge. As such 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.   

13.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.

14.In the Applicant’s case, the fact is that it has been correctly established by the Director in his decisions that the risk of harm in his claim is a localized one arising from a private family dispute without any official involvement that state/police protection would be available to him upon his return to Pakistan, and that it is not unreasonable or unsafe for him to relocate to other area without any risk of being located, decisions also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

15.Furthermore, the Applicant recently on 9 December 2021 wrote to the court requesting to withdraw his application as his problems in his home country “are finished” and that he wants to go home as soon as possible.

16.In the premises, and in the absence of any good reason from the Applicant for his serious delay or any proper ground for his intended application, and given his latest confirmation that his problems in his home country have been resolved, I accede to his request and accordingly dismiss his leave application.

Dated the 4^th day of January 2022.

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