Aslam Farhan v. Torture Claims Appeal Board

HCAL 1835/2023

[2024] HKCFI 128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1835 OF 2023

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 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 28 January 2022 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 last entered Hong Kong illegally on 7 October 2020 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 his uncle and cousins over a land dispute between them and his father in his home village.

2.The Applicant was born and raised in Jalapur Jattan, Punjab, Pakistan. After leaving school he married his wife, raised a family with 3 children in his home district, and farmed on a piece of land inherited by his father and his uncle in equal share from his grandfather.

3.His uncle and sons however coveted the entire piece of land and frequently raised issues with his father over its ownership and demanded to buy out his father’s share which was however refused by his father, and for which his uncle and cousins frequently made threats against his father and the family.

4.One day in May 2007 while working on their father’s land, the Applicant and his brother were confronted by their uncle’s sons with other men armed with various weapons including guns and pistols, and were told to leave the land, and when they refused, their cousins and their men proceeded to beat them, but they eventually managed to make their escape and ran back to their home with just superficial injuries.

5.The Applicant and his brother then reported the incident to the local police who however refused to take the matter seriously by suggesting that it was their own family dispute that they should try to settle between themselves.

6.After another similar confrontation in August 2007 with his uncle and cousins and their followers during which the Applicant and his brother were severely beaten with a warning that next time if they again found them on the land they would kill them.

7.As a result the Applicant and his brother became concerned for their safety and fled to Arifwala where they remained for 1 ½ years without further incidents, but later when they were told by their family that their uncle and cousins were still looking for them everywhere, the Applicant’s brother in 2009 departed Pakistan for Kuwait while the Applicant also departed the country for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police in March 2009 he raised a torture claim to the Immigration Department, and after it was rejected he then sought non-refoulement protection but which he subsequently withdrew in June 2014 after being told by his father that the land dispute with this uncle had been resolved, and accordingly in September 2014 the Applicant was repatriated to Pakistan.

8.However, upon returning to his home village, the Applicant found that his father’s land was still being occupied by his cousins who refused to return it to his father, and after one incident in 2016 when the Applicant heard some gun shots outside his house on which he subsequently found some bullet holes that he suspected that they were warnings from his uncle and cousins, and so he fled to Multan City with his family where they remained for the next 4 years without any serious incidents, but later when he started to receive threatening phone calls from his cousins, the Applicant felt it was no longer safe to remain in Pakistan, and so in October 2020 he departed for China, and from there he again sneaked into Hong Kong, and upon his arrest by the police he raised a subsequent claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 January 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.By a Notice of Decision dated 25 March 2021 the Director of Immigration (“Director”) rejected the Applicant’s subsequent 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”).

10.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of him being harmed or killed by his uncle or cousins 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 him as the land in dispute were registered in his father’s name and it served no useful purpose harming or killing the Applicant, that in any event it was a private land dispute between them within their family 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 238 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 areas 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.

11.On 19 April 2021 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 14 September 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 28 January 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.In its decision the Board accepted the Applicant’s claim of land dispute between his father and his uncle but found no reliable evidence or reason for his uncle or cousins to seriously harm or kill the Applicant given that the land was under his father’s name that it doubted his claim of fear of harm from them that caused him to leave his country to come to Hong Kong for protection, and that in any event it was a private land dispute within the 2 families without any official involvement that state or 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 away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

13.On 12 October 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly in assessing the Applicant’s non-refoulement claim in that the decision was not fair or reasonable as required by the Wednesbury test;

(2)  That the Board failed to recognize that the Applicant’s right to life must be protected by criminal law from extra-judicial killings that he may face if deported back to his home country;

(3)  That the Board failed to appreciate or give proper weight or importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(4)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(5)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed consider or give enough weight to such evidence and ruled otherwise against the Applicant which was a clear case of unfair attitude shown by the Board which in itself is enough to render the decision void;

(6)  That the Adjudicator was procedurally improper or unfair when assessing whether or not to accept explanations provided by the Applicant and unreasonably required him to respond to questions;

(7)  That the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s home country making persecution effectively persecution by the State; and

(8)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal/petition based on findings which the Adjudicator ought to allow the appeal/petition and thus the decision was irrational.

14.By then the Applicant was however 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.

15.As the last day of the 3 month-period for him to file his Form 86 fell on 28 April 2022, the Applicant was therefore more than 1 year 5 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 5 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his application that he had been in prison for a drug-related conviction and imprisonment for 3 years from September 2020 to October 2023 when thereafter he was transferred to the Immigration Department for detention that he was not able to file his application within the required time.

17.The record shows that the decision was sent on the same day of 28 January 2022 to the Applicant’s then imprisonment at Tong Fuk Correctional Institution without being returned through undelivered post, and while it is accepted that there would be the inevitable delays in mails and limited access to legal assistance while in prison or detention, I do not consider them as good or sufficient reason or justification for his such serious delay.

18.As for the merits, if any, of his intended application, all his proposed grounds listed above are just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaboration as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or how did the Adjudicator act in a procedurally unfair manner or improperly rely on relevant COI, or what relevancy are State Acquiescence or extra-judicial killings or nexus of politicians or officials to his claim which on the factual basis of even his own case was a private land dispute within his family without any state or official involvement that there is simply no proper basis in such complaints. 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 of them reasonably arguable for his intended challenge, nor do I find any merits in his intended application.

19.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.

20.In the Applicant’s case, the fact is that it has also been rightly established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if real 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.

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.

22.For the reasons given 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 or justification for his such serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 9^th day of January 2024

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