Akram Muhammad v. Torture Claims Appeal Board

HCAL 2462/2020

[2022] HKCFI 247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2462 of 2020

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:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 26 October 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 35-year-old national of Pakistan who entered Hong Kong illegally in about December 2008 and was arrested by police on 10 February 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 his neighbor over a land dispute with the Applicant’s family. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Jaranwala Tensil, Faisalabad District, Punjab, Pakistan where his father was a farmer, and after leaving school he assisted his father farming on the family farmland.

3.As his neighbor also owned a farmland adjacent to his family’s land, one day in 2007 his neighbor approached his family with a view to purchase his family farmland, but when it was turned down by his family as the land was not for sale, his neighbor continued to pester and harass his family, and one day in October 2008 while the Applicant was working on his family farmland, his neighbor drove some cattle onto the land, and when the Applicant tried to stop him, they broke into a fight between them until they were restrained by other villagers.   

4.On the following day his neighbor came to the Applicant’s home to look for him for further fight, and to avoid his neighbor’s threats, the Applicant left home for Lahore, and from there he departed Pakistan in November 2008 for China, and about a month later he sneaked into Hong Kong, and after his arrest by the police, he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 10 December 2014 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any of the scheduled screening interviews before the Immigration Department without reasonable excuses.

5.Whilst released on recognizance pending the determination of his claim, the Applicant was again arrested by police in 2012 for robbery for which he was later convicted and sentenced to prison for 5 years.      

6.By a Notice of Decision dated 24 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 his neighbor and his men upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his neighbor to harm or kill the Applicant given the fact that his family farmland did not belong to him and his family had never been threatened by his neighbor since the Applicant left the country, that in any event it was a private land dispute between his family and his neighbor 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 199 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 Lahore or Islamabad where it would be difficult if not impossible for his neighbor to locate him.

8.On 18 November 2016 the Director 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 him, the Director by a Notice of Further Decision dated 7 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.

9.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal which was filed on 5 August 2015, and for which he attended an oral hearing on 3 August 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 26 October 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found no evidence of any real intention of the Applicant’s neighbor to seriously harm or kill him given that he was not the owner of his family farmland while his father or other family members had never been threatened or harmed over the land by his neighbor since the Applicant’s departure of the country, and that in any event it was a private land dispute without any official involvement that state/police protection would be available to the Applicant upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.   

11.On 18 December 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision in which he merely stated that the Board reached the decision wrongly in assessing his non-refoulement claim and that it was not reasonable or fair, and in his subsequent written submissions he provided further elaborations in support of his complaints as follows:

(1)     That the decision was unfair and unreasonable in assessing his non-refoulement claim in that it failed to properly consider his right to life under BOR 2 and he should be protected from extra-judicial killing that he may face if deported to his home country;

(2)     That it was a situation of unjust attitude displayed by the decision which is sufficient to render it null and void as various human rights organizations have produced reports that supported matters raised in his claim but which the decision failed to take into account which is by itself a failure of the Board to attain high standards of fairness in its consideration of the Applicant’s claim.    

12.However, by then the Applicant was 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.

13.As the last day of the three-month period for him to file his Form 86 fell on 26 January 2019, and hence the Applicant was almost 23 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.

14.In the Applicant’s case, a delay of almost 23 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation, and as he made no request for oral hearing for his application, I fail to see any good or valid reason for his such serious delay.

15.As for the merits, if any, of his intended application, as noted above the Applicant has merely put forth some vague and bare assertions without any proper details or elaborations as to how they apply to his case or what relevancy would extra-judicial killings or human rights issue be to his claim which was on his own case just a private land dispute between his neighbor and his family without any evidence of official involvement and as correctly found by both the Director and the Board that there was no evidence or basis of any of the proscribed risks under any of the applicable grounds. 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 merits in his intended application.  

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 fact is that it has been established by the Director in his decisions that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, 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.     

18.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.

19.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 19^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