Arshad Alias Arshad Numy v. Torture Claims Appeal Board

HCAL 1700/2021

[2023] HKCFI 426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1700 of 2021

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 21 November 2019 be refused; and

2.  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 21 October 2008 and was arrested by police on the same day. 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 certain local supporters of the political party Muttahida Quami Movement (“MQM”) for quitting their party and/or by the terrorist group Al-Qaeda for refusing to join their group. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sargodha, Punjab, Pakistan. After leaving school he went to Dubai to work as a construction worker before returning to his home district in Pakistan in 2005 to form a company manufacturing electronic devises and components, and started to support MQM by regularly attending their local meetings and rallies but without holding any official post in the party.

3.In late 2007 he started to become disillusioned with some of the policies of MQM and stopped attending their activities with the intention of leaving the party, but when the local MQM leader learnt about his intention, he warned the Applicant that he would be killed if he dared to quit the party.

4.The Applicant became concerned for his safety and did not know what to do, but was approached by some unknown men who claimed to be members of the Al-Qaeda that they could offer him protection from any threats from MQM and invited him to join their group, but when the Applicant refused, those men then punched and kicked him, and one of them pulled out a pistol and threatened to kill him if he still refused to join their group the next day after he was told to seriously reconsider their proposal.

5.Fearing for his life due to the threats from the local MQM supporters and the Al-Qaeda, the Applicant fled to Lahore to hide in his aunt’s place, but later when he heard that those Al-Qaeda men were looking for him everywhere, he felt it was no longer safe to remain in Pakistan, and so on 17 January 2008 he departed for China, and from there he later sneaked into Hong Kong, and upon 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 23 April 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 19 January 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on the 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 the local MQM leader or the Al-Qaeda men upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of either of them to seriously harm or kill him for refusing to join their group or party, that it is not accepted that after all these years since he left the country in 2008 that there would still be any adverse interest from either group in the Applicant, that in any event 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 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 the country away from his home district in large cities such as Islamabad where it would be difficult if not impossible for anyone to locate him.

8.On 2 February 2015 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 13 October 2015 before the board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 17 February 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found no reliable evidence of any real intention of either the MQM leader or the Al-Qaeda members to seriously harm or kill the Applicant for failing to join their group or party, that it is not accepted that after all these years since he left the country that there would still be any adverse interest of anyone in the Applicant, that in any event in the absence of any official involvement that state/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.

10.Meanwhile on 29 March 2017 the Director on his own initiative in writing 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 27 April 2017 also rejected the Applicant’s BOR 2 Claim upon finding that 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.

11.On 2 January 2018 the Applicant filed his appeal to the Board against this Further Decision of the Director, but as his notice of appeal was unsigned and incomplete, it was returned to him to rectify the omissions, and it was not until 8 May 2018 when he was able to fully comply with all the formality and requirements and properly filed his notice of appeal to the Board, but as by then it was clearly done outside the 14-day period required under Section 37ZS(1) of the Immigration Ordinance, the Board in pursuance of Section 37ZT(2) of the Ordinance proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s notice of appeal, and by a Decision dated 21 November 2019 it refused to allow the late filing of the appeal.

12.In this decision the Board found the fact that the Applicant was arrested by police in March 2017 for some criminal offence and was in detention at the time when the Director’s Further Decision was made was not a valid excuse for his such serious delay more than 7 months as he had clearly been so informed of the decision and was subsequently provided with the appeal/petition form for his appeal, as he so admitted in his application for the late filing of his appeal, and that in any event having already in its earlier decision considered and rejected the merits of his claim under all the other applicable grounds that the Board found no special circumstances that would make it unjust not to allow the late filing of his appeal against the Director’s Further Decision.

13.On 15 December 2021 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim as before that his life is still in danger in his home country that he cannot return to Pakistan but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

14.By then the Applicant was also late 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.

15.As the last day of the three-month period for him to file his Form 86 fell on 21 February 2020, the Applicant was therefore more than 1 year and 9 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.

16.In the Applicant’s case, a delay of more than 1 year 9 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his application or affirmation, and as the record shows that the decision was sent on the same day of 21 November 2019 to his last reported address without being returned through undelivered post, I fail to see any good or valid reason for his such serious delay.

17.As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forward any proper ground for his intended challenge, and as such I do not find any merits in his seriously late application either.

18.It 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.

19.In the Applicant’s case, the Board earlier in its first decision had already rejected his claim under all the other applicable grounds essentially on its correct and unchallenged findings of the availability of state protection and internal relocation to the Applicant upon his return to Pakistan to negate any risk which might arise from his claim that in my judgment there is simply no merits in his BOR 2 Claim based on the facts of his own case that simply does not engage the BOR 2 ground even if his appeal against the Director’s Further Decision on his BOR 2 Claim had been filed within time before the Board, and as such and in the absence of any error of law or procedural unfairness in the 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 findings of the Board in either of its decisions.

20.Furthermore, as noted above that it has been established by both the Director and the Board in their respective early decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, of which the Applicant made any legal challenge, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

21.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 or in the Board’s refusal to allow his late appeal against the Director’s Further Decision regarding his BOR 2 Claim.

22.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 14^th day of February 2023.

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