Dar Irfan Hussain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1489/2019

[2024] HKCFI 1545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1489 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 K.W. Lung:

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 13 March 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which is 13 June 2018. His application was filed on 31 May 2019, which is late for more than 11 months. This issue will be dealt with below.

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 35, is a Pakistani. He entered Hong Kong illegally on 31 March 2008 and was arrested by the police on 13 May 2008. The applicant lodged a torture claim on 20 August 2008. The claim was made on the basis that, if refouled, he would be harmed or even killed by the three sons of his paternal uncle (“Sadiq”) because of a land dispute and the subsequent death of Sadiq. Upon the commencement of the unified screening mechanism, his torture claim had been taken to be a non-refoulement claim and was assessed on all applicable grounds.

5.According to the applicant, his father was an active member of the Pakistan People’s Party (“PPP”) and his brother had been working as a volunteer for PPP. On 8 November 1997, the applicant’s father was assassinated when he was contesting a political election. The applicant suspected that Sadiq killed his father with the intention to take his share of the land from his grandfather (“the Land”).

6.Sadiq was a member of the Pakistan Muslim League (N) (“PML(N)”), the current ruling party in Pakistan. He used to be the Nazim of the Union Council representing PML(N) and therefore had influence in almost every government department. Sadiq always utilised his connection with the government officials to file false cases against the applicant and his brother. However, they were always found innocent because their father also had influence in the government.

7.After the death of the applicant’s father, the applicant’s brother went to register the Land. In early March 2008, the Court made a decision in favour of the applicant’s brother regarding the registration of the Land. In mid-March 2008, the applicant’s brother together with another paternal uncle and his cousin went to handle some administrative proceedings regarding the Land. They were intercepted by Sadiq and his three sons, who attempted to stop the conveyance. A fight broke out as a result, with his cousin shot dead while his brother also got a shot in his leg. The applicant’s brother was sent to hospital. The police did investigate the case, but they did not render any assistance thereafter.

8.While the applicant’s brother was hospitalised, he asked the applicant through his friend to relocate in order to avoid Sadiq and his sons. A week later, another friend of the applicant’s brother gave him a passport and asked him to leave Pakistan immediately. The applicant left for Thailand on 26 March 2008 and arrived in China on 27 March 2008. After 3-4 days, this friend urged the applicant to relocate to Hong Kong, telling him that it was his brother’s idea for his safety sake. The applicant therefore sneaked into Hong Kong on 31 March 2008.

9.Subsequently, the applicant’s brother and his mother left Pakistan for the United Kingdom. In late 2013 or early 2014, the applicant learnt from his brother that Sadiq was assassinated. His sons accused the applicant and his brother of being behind the assassination.

10.The applicant was of the view that the police could not render any assistance to him because he had no money to bribe them. He also considered internal relocation within Pakistan not viable because it would be difficult for him to live in a new place without money and relatives. He also thought he would be arrested once he returned to Pakistan due to the suspected murder case of Sadiq.

11.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 31 August 2017 (“the Director’s Decision”).

The Director’s Decision

12.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

13.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director noted that his brother was the owner of the Land, but not the applicant, so that any risk of harm in relation to the dispute of Land should have dissipated. The Director also found that the applicant had never suffered any harm from Sadiq’s family. Such absence or low intensity and frequency of past ill-treatment from Sadiq and his sons indicated a small future risk of harm upon his return to Pakistan. As to the perceived risk of harm by Sadiq’s sons and the arrest by police due to the suspected murder of Sadiq, the Director was of the view that such claims were merely the applicant’s own speculation and too far-fetched given that they were based on the hearsay information from his brother [14]-[18].

14.In any event, (i) state protection will be available to him upon his return [19]; (ii) internal relocation is viable [20] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [21]-[26], Persecution risk [27]-[31] or Torture risk [32]-[34].

The Board’s Decision

15.The applicant appealed the Director’s Decision to the Board. On 29 January 2018, the Board conducted an oral hearing.

16.The Board noted that the land dispute was between Sadiq’s sons and the applicant’s brother instead of the applicant himself. In any event, Sadiq’s sons had never done anything to harm or had ever threatened to harm the applicant. As to suspected involvement of the applicant and his brother in the assassination of Sadiq, the Board was of the view that such matter should be dealt with by the Pakistani authority rather than by the Board itself. Meanwhile, the claimed closed affiliation with the PML(N) was also merely speculative without any supporting evidence [38]-[41].

17.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk. Furthermore, state protection and internal relocation were also available to the applicant taking into account the country of origin information [7]-[16], [38]-[56].

18.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

19.The applicant has filed Form 86 dated 31 May 2019 for leave to apply for judicial review of the Board’s Decision.

20.In his affirmation in support of his application, the applicant said he disagreed with the Board without raising any specific ground.

DISCUSSION

21.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

22.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

23.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

24.For the reasons the Board has given above, the Board found that the applicant will not be subjected to any of the applicable risks if he returns to his country. The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.

25.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

26.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 4^th day of July 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