Afridi Zulqarnain v. Torture Claims Appeal Board

HCAL 3517/2019

[2024] HKCFI 3151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3517 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 37-year-old national of Pakistan who entered Hong Kong illegally on 10 May 2009 and surrendered to the Immigration Department on 1 June 2009 when he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by some neighbours over their land dispute with his family in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Nowshera, Khyber Pakhtunkhwa Province, Pakistan. After leaving school he worked as a laboratory technician in his home district where his father had earlier inherited some farmland from his grandfather and on which his father had farmed for years.

3.In 2009 his father decided to sell his farmland, but upon attending at the local land office, his father discovered that the land had instead been registered in the names of his neighbours Pervaiz and son Wali.

4.Suspecting that Pervaiz and Wali must have conspired with someone in the land office to falsely register his land in their names, the Applicant’s father filed a formal complaint (“FIR”) to the police against the neighbours.

5.Several days later his father started to receive threatening phone calls warning him to drop the complaint or else there would be serious consequences, and one evening while the Applicant and his cousin were on their way home, some unknown men appeared and fired gun shots at them that struck his cousin but the Applicant managed to escape from the scene unharmed and ran home.

6.Later when he heard that his cousin had died from the gun shots, and as he suspected that Pervaiz and Wali were trying to kill him, the Applicant therefore fled to Lahore, and on 30 April 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”).

7.By a Notice of Decision dated 17 March 2015 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 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”).

8.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 neighbours Pervaiz and Wali upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that in any event it was a private land dispute between them and his father 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 such as Lahore or Karachi where it would be difficult if not impossible for Pervaiz or Wali to locate him.

9.On 30 March 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 31 May 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 April 2017, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.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 neighbours Pervaiz or Wali that caused him to leave the country to come to Hong Kong to seek protection, that in any event even if his claimed risk were real that it arose from some land dispute between them and his family 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 areas 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.

11.Meanwhile on 8 May 2017 the Director on his own initiative invited the Applicant to submit additional facts which he may consider 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”), and in the absence of any response or reply from him, the Director by a Notice of Further Decision dated 5 June 2017 also rejected the Applicant’s BOR 2 Claim upon finding that in the absence of any additional information that his case clearly did not engage the BOR 2 ground and concluded that he had failed to establish a personal and real risk of being arbitrary deprived of his life in violation of his BOR 2 right upon his return to Pakistan.

12.On 28 June 2017, the Applicant again lodged an appeal to the Board against the Director’s Further Decision, but as his Notice of Appeal was deemed to have been 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 his Notice of Appeal.

13.By a Decision dated 26 April 2019 the Board refused to allow the Applicant’s application for the late filing of his Notice of Appeal upon finding that the 14-day period for him to file his Notice of Appeal expired on 21 June 2017, that the delay of 7 days was not insignificant, that his explanations of never received the decision in the mail as he might have changed his address were not supported by any documentary evidence and were not acceptable in any event, and that there were no valid grounds for his late appeal/petition.

14.On 27 November 2019, the Applicant filed his Form 86 for leave to apply for judicial review of a decision of the Board which he dated 6 September 2019, and 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 does not agree with the decision but without putting forth any proper ground for his intended challenge.

15.There is however no such decision by the Board that was dated 6 September 2019, as its 2 decisions on the Applicant’s appeals are as noted above dated respectively 20 April 2017 and 26 April 2019, but even if the Court were to accord the Applicant with the benefit of the doubt of some genuine mistake on his part and to treat his application as one to challenge both decisions, the Applicant would have been out of time with either, 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 to extend the period within which the application shall be made.

16.As the last day of the three-month period for him to file his Form 86 as regard the more recent second decision of the Board fell on 26 July 2019, the Applicant was therefore some 4 months late with his application, not to mention the much more serious delay as regard the earlier first decision of the Board of 20 April 2017, 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.

17.In the Applicant’s case, a delay of 4 months with regard the second decision of the Board would be considered already as very substantial and inordinate, never mind as regard the much earlier first decision, and for which he did not provide any explanation or reasons in his Form or affirmation. As such I am unable to see any good or valid reason for his such serious delay.

18.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge of either decision of the Board, and in the absence of any error of law or irrationality or procedural unfairness in either of his process before the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

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 been established by both the Director and the Board in their respective first decision that the risk of harm in his 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.While it is of note that in its second decision in refusing the late filing of the Applicant’s late Notice of Appeal, the Board did not appear to have taken account the merits of the appeal as held by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, and in Re Qasim Ali [2019] HKCA 430, as part of the relevant matters of fact within the Board’s knowledge then required by Section 37ZT (2)(b) of the Ordinance to take into account in its consideration, the fact is that the Board did already in its first decision consider and reject the Applicant’s claim under all the other applicable grounds, and that on the factual basis of even the Applicant’s own case that his claim simply did not engage the BOR 2 ground at all, there is therefore simply no reasonably arguable basis to challenge this second decision of the Board.

22.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.

23.Moreover, the Applicant recently on 14 October 2024 filed an affirmation requesting to withdraw his application as his problems in his home country are “finished”, and that he now wants to leave Hong Kong.

24.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 problem leaving Hong Kong, I accordingly dismiss his leave application.

Dated the 14^th day of November 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