Muhammad Nadeem Kashif v. Torture Claims Appeal Board

HCAL 1295/2019

[2022] HKCFI 407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1295 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 20 April 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 42-year-old national of Pakistan who first came to Hong Kong in 2003 as a visitor but overstayed and raised a torture claim, and after it was rejected he was subsequently repatriated to Pakistan in 2011, and in January 2013 he sneaked back into Hong Kong and was arrested by police some 3 years later on 20 January 2016.  After he was referred to the Immigration Department for investigation, he raised a subsequent claim for non-refoulement protection on the basis that if he returned to Pakistan he would be harmed or killed by the local Shia Muslims for having supported the Sunni Muslim religious organization Sipah-e-Sahaba Pakistan (“SSP”) which was then banned by the Pakistani government as a terrorist group.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Sunni Muslim in Mohallah Mubarak Shah, Gujranwala, Punjab, Pakistan. After leaving school he worked in his father’s factory in Gujranwala, and supported SSP and attended their local religious activities which frequently came into conflicts with the religious views of those Shia Muslims in his home district.

3.One day in late 2002 while he and his fellow SSP supporters were attending a local religious gathering, they were confronted by a large group of Shia Muslims who fired their guns at the sky and proceeded to attack them, but the Applicant managed to escape unharmed and ran back to his home.

4.Several days later he ran into a small group of the same Shia Muslims in the market, and when he refused their demand to leave SSP, he was attacked by them with batons and a knife that he suffered cuts and bruises that he later required medical treatment in the local hospital.

5.After the assault the Applicant took shelter in a relative’s place in Mohalla Samanabad in Faisalabad for several months, but when he heard that those Shia Muslims were still looking for him everywhere, he therefore departed Pakistan for Hong Kong in 2003 where he overstayed and raised a torture claim, but was eventually repatriated back to Pakistan in 2011 after his claim had been rejected.

6.Upon returning to his home district, the Applicant resumed his support for SSP, but the religious conflicts between SSP and the local Shia Muslims continued, and in March 2012 after one mass brawl between them during which gun shots were fired whereby two of the Shia Muslims were injured with another one of them later died, and when the police started to arrest SSP people, the Applicant fled to Peshawar and then to Quetta where he stayed with a friend and worked in his business, but in December 2012 he departed Pakistan for Malaysia and later China, and from there he later sneaked into Hong Kong in January 2013, and after his eventual arrest by the police 3 years later in 2016, he then raised a subsequent claim for non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 13 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 30 November 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his subsequent claim given his failure to raise it upon his arrival in Hong Kong until some 3 years later after his arrest by the police that such conduct or behavior was not consistent with those who are in great and genuine fear and fleeing their country for their life, that even if his claim were true that the level of risk of harm from those local Shia Muslims upon his return to Pakistan was assessed as low due to the low intensity and frequency of past ill-treatment from them, 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 the majority of the Muslim population in Pakistan is in fact Sunni like the Applicant, and that if necessary reasonable internal relocation alternatives are available in Pakistan with a large population of 201 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 to large cities such as Islamabad where it would be difficult if not impossible for those local Shia Muslims to locate him.

9.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 9 April 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from either the local Shia Muslims or SSP or the police upon his return to Pakistan with his credibility further undermined by his failure to raise his claim upon his arrival in Hong Kong until some 3 years later after his arrest by the police, and that in any event in the absence of any evidence of any official involvement that reasonable internal relocation would be available for him upon his return to Pakistan to move safely to other part away from his home district to where the majority of the population is Sunni Muslim and without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.     

11.On 14 May 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 or his supporting affirmation of the same date in which he merely attached a copy of the decision without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

12.By then the Applicant was also 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 20 July 2018, the Applicant was almost 10 months late with his application, and in considering whether to extend time, the court shall have regard for (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 10 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation either in his Form or affirmation, 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 his serious delay.

15.As for the merits, if any, of the 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 reasonably arguable basis for or any merits in his intended application either.

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 essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 17 – 59 of its 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.  

18.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 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.                

19.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.

20.I also note that by a letter dated 29 November 2021 the Applicant made a request to the Court to “close” his case without providing any further details or explanation for his request, of which he subsequently by another letter dated 28 December 2021 wrote to withdraw his request. Accordingly, I would just ignore his earlier request.

21.In the premises, as I am for the reasons given 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 February 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