Liaqat Muhammad v. Torture Claims Appeal Board

HCAL 2848/2019

[2024] HKCFI 1441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2848 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 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 56-year-old national of Pakistan who entered Hong Kong illegally on 9 March 2009 and subsequently surrendered to the Immigration Department 2 months later on 11 May 2009 when he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his former business partner over their monetary dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Addel Zai, Hazro, District Attock, Punjab, Pakistan. After leaving school he worked as a driver, got married and raised a family with 6 children in his home village.

3.In 2000 he formed a second-hand cars sales business with his partner Arshad who was a wealthy business man from the same village, but in 2007 the Applicant decided to leave the partnership due to their different political views, but when Arshad failed to repay him for his share of their business capital, the Applicant made a complaint to the village heads that Arshad became angry and started to make false charges against the Applicant to the police, and as a result the Applicant was arrested and detained by the police on various occasions, and that it was only after he had paid bribes that he was released by the police.

4.To avoid further threats and harassments from Arshad, the Applicant therefore fled from his home village for other cities including Karachi, Lahore and Rawalpindi, and on 4 March 2009 he departed Pakistan for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 31 December 2014 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”).

6.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 his former business partner Arshad upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from Arshad, that there is no evidence of any intention of Arshad to seriously harm or kill him, that in any event it was a private monetary or business dispute between the 2 of them only 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 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 areas of the country away from his home district in large cities where it would be difficult if not impossible for Arshad to locate him.

7.On 12 January 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 14 June 2016 before the Board during which he stated that he only wish to rely on the written evidence he had given before. On 9 March 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his former business partner over their monetary dispute that caused him to leave his country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of Arshad to harm or kill him, and that in any event it was a private monetary dispute between the 2 of them only 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 alternatives for him to move safely to other parts 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.

9.Meanwhile on 7 April 2017 the Director on his own initiative 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 and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response or reply from him, the Director by a Notice of Further Decision dated 5 May 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 ground be violated upon his return to Pakistan.

10.On 31 May 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but as it was deemed to have been filed 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 13 September 2019 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that he had been 9 days late, that his explanations of not being able to read English or to understand the decision for the delay as bare assertions and were not acceptable, and that there were no special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal.           

11.On 27 September 2019 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 or his supporting affirmation of the same date in which he just stated that he rejects the decision as it disregarded his dangerous situation but without putting forth any proper ground for his intended challenge. 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.

12.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.

13.In the Applicant’s case, the Board refused to allow the late filing of his Notice of Appeal regarding his BOR 2 Claim on its finding that his given reasons for the delay were unacceptable as just bare assertions, and that there were no other relevant matters of fact within its knowledge or special circumstances that would make it unjust not to allow the late filing, and while it did not appear in this decision that the Board had specifically taken account of the merits of the appeal as part of the relevant matters of fact within its knowledge required under Section 37ZT (2) of the Ordinance, I do not find that it would assist or advance the Applicant’s case any further given his failure to submit any additional facts which may be relevant to his BOR 2 Claim, and that on the factual basis of his non-refoulement claim even on his own case that his claim had in fact already been properly considered, assessed and rejected by the Board in its earlier decision on all the other applicable grounds. As such there is simply no basis to challenge the finding of the Board in this second decision in refusing the late filing of the Applicant’s notice of appeal regarding his BOR 2 ground which was not engaged at all, or for that matter to challenge the Board’s earlier decision under all the other applicable grounds.   

14.Furthermore, the fact is that it has also been established by both the Director and the Board in their earlier decisions 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.                

15.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 under all the applicable grounds or of the Board’s second decision in refusing the late filing of his appeal under the BOR 2 ground.

16.Moreover, the Applicant recently on 30 April 2024 filed an affirmation requesting to “close” his application as his problem in his home country has been solved.

17.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more problem returning to his home country, I accordingly dismiss his leave application.

Dated the 30^th day of May 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