Muhammad Jamil v. Torture Claims Appeal Board

HCAL 1303/2019

[2022] HKCFI 2318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1303 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 31-year-old national of Pakistan who entered Hong Kong illegally on 6 December 2012 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the terrorist group Taliban over some minor dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Rasila Kalan, Tehsil Domeli, District Jhelum, Punjab, Pakistan where he obtained a Diploma in Chemical Engineering.

3.One day in January 2012 he was playing cricket with his friends when one of them hit the cricket ball into a nearby house, and when they knocked on the door to try to retrieve the ball, they got into some argument with the people inside which turned into some scuffle when those people pulled out guns and started shooting, but the Applicant and his friends managed to flee from the scene unharmed.

4.Afterwards the Applicant made a report of the shooting to the police, and on the next day he read from the newspapers that the police had raided that house and found weapons in what was believed to be a hiding place for the terrorist group Taliban which was banned in Pakistan.

5.A few days later the Applicant received a phone call from some man claiming to be the Taliban who blamed him for the police raid and swore to kill him in revenge, and several weeks later one evening in March 2012 while the Applicant was on his way home, two men drove by on a motorcycle when one of them fired gun shots at him but the Applicant managed to escaped unharmed. Afterwards he made another report to the police but no arrest was made.

6.Two months later in May 2012 the Applicant received another phone call from the Taliban who repeated the threat to kill him. As a result the Applicant became fearful for his life, and so on 8 October 2012 he departed Pakistan for China, and from there he later 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 Non-refoulement Claim Form (“NCF”) on 26 April 2016 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any scheduled screening interviews before an immigration officer for various excuses.

7.By a Notice of Decision dated 13 December 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 assessed the level of risk of harm from those Taliban 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 them to seriously harm or kill the Applicant, that the Taliban were banned as terrorists in Pakistan that state or police protection would be available to the Applicant if resorted to upon his return to Pakistan, 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 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 the country away from his home district in large cities such as Islamabad where it would be difficult if not impossible for those Taliban 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 10 April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 27 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found serious inconsistencies, discrepancies and total lack of details in the Applicant’s evidence as to his claimed dispute with the Taliban arising from a cricket ball entering someone’s house that escalated into a fight but that he subsequently managed to escape unharmed from two gun shooting incidents which the Board found to be incredible under the circumstances, that the credibility of such claim was further undermined by his failure to attend any screening interviews before an immigration officer for some dubious excuses, and that in any event as the Taliban were banned in Pakistan as terrorists that state and police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

11.On 15 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, and in his supporting affirmation of the same date he just stated that he rejects the decision as it disregarded his dangerous situation but without providing any particulars or elaboration as to how it did so or put forth any other proper ground for his intended challenge, nor did he request any oral hearing for his application.

12.By then he 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.

13.As the last day of the three-month period for him to file his Form 86 fell on 27 July 2018, the Applicant was therefore almost 10 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 10 months must be considered as very substantial and inordinate, for which he did not provide any explanation 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 or valid reason for his serious delay.

15.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.

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 correctly established by both the Director and the Board in their respective decision that the risk of harm in his 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.

18.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.Furthermore, the Applicant recently on 4 July 2022 filed an affirmation requesting to withdraw his application as he wants to leave Hong Kong to go somewhere else.

20.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 or any good reason for his serious delay, and in view of his latest confirmation of his intention to leave Hong Kong, I accordingly dismiss his leave application.

Dated the 28^th day of July 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