Naseem Mohammad Ishaq v. Torture Claims Appeal Board

HCAL 572/2018

[2024] HKCFI 249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 572 OF 2018

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 / 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 57-year-old national of Pakistan who entered Hong Kong illegally on 8 January 2016 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 elder brother over their land dispute in his home village and/or by his former business associate over their political dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born in Lahore, Punjab, Pakistan and raised in Hazro City, Attock District, Punjab. After leaving school he continued to reside with his parents and siblings in the family house in his home district, worked in various jobs including accountant and merchant to make his living, and supported the political party Pakistan Muslim League (Q) (“PML(Q)”) regularly attended their local meetings and activities.

3.After the passing of his parents, the Applicant and his siblings continued to reside in the family house, but in 2012 his eldest brother Umar tried to drive him and other siblings out of the family house so as to possess and occupy the property for himself, which led to many disputes and conflicts with the Applicant who was on one occasion attacked by Umar’s 3 sons that he suffered cuts and bruises all over his body that he was subsequently brought by his neighbours to a local clinic for medical treatments.

4.After the attack the Applicant became fearful for his safety and fled to Karachi where he subsequently started a trading business with an associate Tahir, but during the 2015 election he had a heated political dispute with Tahir who supported rival party Pakistan Muslim League (N) (“PML(N)”), during which Tahir and his followers made threats against the Applicant.

5.As a result of the threats from Umar and Tahir, the Applicant became concerned for his own safety and therefore departed Pakistan on 7 January 2016 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 11 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 7 June 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all 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 him being harmed or killed by Umar or Tahir upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of either of them to seriously harm or kill him, that in any event they were private personal disputes between them 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 199 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 where it would be difficult if not impossible for Umar or Tahir to locate him.

8.On 21 June 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which the Board did not hold any oral hearing and proceeded to deal with the appeal in the absence of the Applicant and on paper, and on 12 May 2017 the Board dismissed his appeal and also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of fear of harm from his elder brother Umar and sons over their land dispute and from his former business associate Tahir over their political dispute, but found that both were private personal disputes just between them 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 the applicable grounds.

10.On 3 August 2017 the Applicant filed a Form 86 under HCAL 479/2017 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he was not satisfied with the decision but without putting forth any proper ground for his intended challenge.

11.On 23 March 2018 his leave application was refused by Deputy High Court Judge Woodcock upon finding that no substantial grounds had been put forward by the Applicant in support of his application, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application.

12.The Applicant’s subsequent appeal against the decision of Deputy High Court Judge Woodcock was also rejected by the Court of Appeal on 8 December 2020 (CAMP 111/2019 [2020] HKCA 996).

13.Meanwhile earlier on 6 June 2017 the Director on his own initiative invited the Applicant to submit any additional facts relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 23 June 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

14.On 27 July 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but as his notice of appeal was filed outside the 14-day period required by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s notice of appeal.

15.By a Decision dated 25 February 2019 the Board refused to allow the Applicant’s late filing of his notice of appeal upon finding that it was late by almost 3 weeks, that his explanation of not receiving the Director’s Further Decision in the mail as he had changed his address was not accepted in the absence of any documentary evidence in support and that even if true that it was entirely due to his own fault of updating his new address with the Director, and that there were no other matters known to the Board or revealed by the factual basis of the Applicant’s claim which might amount to special circumstances which would make it unjust not to allow the late filing of his notice of appeal.

16.Meanwhile on 6 April 2018 the Applicant filed another Form 86 in these proceedings for judicial review of a Board’s decision which he dated “23-3-2018”, and in his supporting affirmation of the same date he just stated “Reconsideration of appeal”, and to which he attached a copy of the decision of DHCJ Woodcock of 23 March 2018.

17.It is clear that this decision of DHCJ Woodcock cannot be challenged by way of judicial review, but rather only by appeal to the Court of Appeal which as noted above ([12]) that the Applicant had earlier already done so but which had been dismissed by the Court of Appeal, and hence one can only assume that the Applicant had in fact intended to challenge the second decision of the Board made on 25 February 2019 in refusing the late filing of his notice of appeal against the Further Decision of the Director in rejecting his BOR 2 Claim.

18.As also noted above that the Applicant did not in either his Form 86 or affirmation put forward any ground or complain for his intended challenge, nor did he request any oral hearing for his application. 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 reasonably arguable basis for his intended challenge.

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 Board refused to allow the late filing of his notice of appeal for the correct findings and reasons as set out in its decision in accordance with the then provisions stipulated in the relevant Section 37ZT of the Immigration Ordinance, and while the Board may not have specifically referred to the merits of the appeal as held to be relevant by the Court of Appeal in Re Khan Kamal Ahmed, CACV 563/2018 [2019] HKCA 377, and Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, and for which the Applicant merely repeated in section of his notice of appeal his claim as before of fear of harm from his elder brother or his former business associate over their private disputes, of which the Board had already in its earlier decision fully considered and properly rejected under all the other relevant applicable grounds, while on the factual basis of even the Applicant’s own case that his claim simply did not engage the BOR 2 ground in its limited scope. As such, and in the absence of any error of law in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

21.Furthermore, as noted above the fact is that it has also been correctly established by both the Director and the Board in their respective earlier decisions that the risks of harm in the Applicant’s claim if real are localized ones and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a finding which he earlier was unable to challenge either before DHCJ Woodcock or the Court of Appeal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

22.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 the Director’s consideration and assessment of the Applicant’s BOR 2 claim or in the Board’s decision in refusing the late filing of his notice of appeal.

23.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 accordingly I dismiss his leave application.

Dated the 23^rd 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