Khan Dil Awaiz Alias Khan-dil- Awaiz Alias Dilvez Alias Dilwaz v. Torture Claims Appeal Board

HCAL 101/2019

[2022] HKCFI 2372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 101 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant 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 16 November 2017 refused; and

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

Observations for the Applicant:

1.The Applicant is a 51-year-old national of Pakistan who had previously twice arrived in Hong Kong with permission to remain pending his application for a dependent visa, but was deported on both occasions upon conviction of criminal offences back to Pakistan, and on 29 January 2016 he again entered Hong Kong illegally and was subsequently arrested by police. 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 family of a distant relative over their land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Barrah, Tehsil Hazro, District Attock, Punjab, Pakistan. In 1990 he arrived in Hong Kong as a visitor under a different identity and with permission to remain pending his application for a dependent visa in his step-father’s family, but was later in 1996 deported back to Pakistan after he was arrested, convicted and sentenced to prison for theft.

3.Two years later in 1998 he again arrived in Hong Kong under another identity, and was allowed to remain upon marrying a local resident and pending his application for a dependent visa, but in 2001 he was arrested for robbery for which he was convicted and sentenced to prison for 27 months, and upon discharge from prison he was deported back to Pakistan in 2003.

4.Upon returning to his home village, the Applicant leant that he had inherited some land from his father before he passed away but did not know where it was, but 2013 with the help of a friend who worked in the Land Department he was able to locate and recover his inherited land from his distant relative Asif Khan who had been using it for years during his absence from the village and was reluctant to return it to the Applicant, which had led to serious conflicts between the two families.

5.During a village council meeting for mediation between the two families which however deteriorated into a mass brawl between the members, Asif Khan was stabbed by a cousin of the Applicant and was seriously injured, whereupon the Applicant fled from the scene, and when he later heard that Asif Khan had died from the injuries, he then fled to Islamabad to take shelter in an uncle’s home where he stayed for the next 2 ½ years without incidents.

6.However, in late 2015 when he heard that Asif Khan’s family had found out his whereabouts and were coming to Islamabad to take revenge against him, the Applicant departed Pakistan on 29 January 2016 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 29 November 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 20 January 2017 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 found no substantial grounds for believing that there will be any real risk of him being harmed or killed by Asif Khan’s family upon his return to Pakistan due to the absence of any past ill-treatment from them, that it was his cousin who stabbed Asif Khan who should be held liable for the death and not the Applicant, in any event his problem with Asif Khan’s family was a private land dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan 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 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 Karachi or Lahore where it would be difficult if not impossible for anyone to locate him.

9.On 1 February 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 27 September 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 16 November 2017 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 contradictions in the Applicant’s evidence previously given to the Director and in his appeal hearing to the Board that it doubted the credibility of his claim and did not consider him to be a reliable witness or that his evidence is credible that it rejected his claim of fear of harm from Asif Khan’s family arising from any land dispute or that he would face any prosecution from the police or authorities or any risk of harm from anyone upon his return to Pakistan that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

11.On 10 January 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 the decision is unfair and unreasonable but without providing any particulars or elaboration why it is so, nor was he able to do so or put forward any proper ground for his intended challenge at the hearing of his application.

12.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.

13.As the last day of the three-month period for him to file his Form 86 fell on 16 February 2018, the Applicant was therefore almost 11 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 11 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his application that he was then in prison in January 2018 for some criminal offence and hence he never received the decision in the mail, and that it was only after his discharge from prison and was transferred to the Castle Peak Bay Immigration Centre (“CIC”) in November 2018 when he was so informed by his immigration officer but by then he was already out of time with his application.

15.The record shows that the Board’s decision was sent on the same day of 16 November 2017 to the Applicant at his then reported address without being returned through undelivered post, hence the Applicant would have received the decision long before his alleged imprisonment later in January 2018, and as such I do not accept his explanation that he was not aware of the decision until only later in November 2018 when he was so informed by his immigration officer, and while it is inevitable that there are various restrictions to inmates or detainees in prison or CIC as to receiving mails and obtaining legal assistance, I am not satisfied that they could amount to any good or valid reasons for such serious delay of the Applicant.

16.As for the merits, if any, of the intended application, as noted above the Applicant has also 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.

17.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.

18.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 77 – 94 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 or any merits in his intended application.

19.Furthermore, the fact is that it has also been correctly established by the Director in his decision 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, a decision 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.

20.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.

21.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 2^nd day of August 2022

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