Irfan Qurban v. Torture Claims Appeal Board

HCAL 1363/2022

[2024] HKCFI 3228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1363 OF 2022

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 39-year-old national of Pakistan who entered Hong Kong illegally on 19 December 2015 and was arrested by police on 27 December 2015.  After he was referred to the Immigration Department for investigation, he raised a

2.The Applicant was born and raised in New Mohalla, Loharian, District Jhelum, Punjab, India where his father jointly owned a piece of farmland with his paternal uncle inherited from his grandfather in the home village, and on which the Applicant used to assist his father in his farming.

3.His paternal uncle however coveted his father’s share of the land, always demanding for a bigger share, which led to frequent conflicts between the 2 families.

4.In 2012 his uncle’s sons also started to harass and intimidate the Applicant to give up his share of his father’s land which he stood to inherit in future, and when the Applicant refused, they then threatened to kill him, and after an attack by them that he suffered cuts and bruises all over his body, the Applicant became fearful for his safety, and on his father’s advice he subsequently on 10 December 2015 departed Pakistan 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

5.By a Notice of Decision dated 26 March 2018 the Director of Immigration (“Director”) rejected the Applicant’s 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

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 uncle and cousins upon his return to Pakistan as low due to the low intensity and frequency of past

7.On 9 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it could be dealt with by the Board, the Applicant in writing on 22 June 2020 applied to withdraw his appeal as he considered it safe to return to Pakistan, and upon being satisfied that his application to withdraw his appeal was freely sought, that he had had good reason for his proposed withdrawal, and that he fully understood the consequences of the withdrawal, the Board on 20 July 2020 directed that his appeal be withdrawn and confirmed the Director‘s decision.    

8.However, more than 2 years later on 30 November 2022 the Applicant filed a Form 86 for leave to apply for judicial review of both decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) That the Director failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(2) That the Director acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

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

(4) That the Director failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(5) That the Director relied on relevant COI which only suited his pre-conceived conclusion which was a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void;

(6) That the Director failed to attain high standard of fairness required by the Wednesbury test in his decision which should be considered unreasonable in the scope of public law;

(7) That the Board in allowing the Applicant to withdraw his appeal without making sufficient enquiry or to advise him properly before finalizing its decision.     

9.By then the Applicant was clearly 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 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.

10.As the last day of the three-month period for him to file his Form 86 fell on 20 October 2020 after the Board allowed him to withdraw his appeal at his own request, the Applicant was therefore more than 2 years 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.

11.In the Applicant’s case, a delay of more than 2 years must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation as to why having confirmed that it was safe for him to return to Pakistan that he has now changed his mind about his challenge of the Director’s decision, and in the absence of any explanation from him, I am unable to see any good or valid reason for his such serious delay.      

12.As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just bare and vague assertions containing a few key words or phrases but without any particulars or specifics or elaborations 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 that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence to the Applicant’s case or what evidence is there to suggest that the Applicant has ever been tortured by law enforcement agencies or politicians when on the factual basis of even his own case that it was a private land dispute between him and his uncle and cousins within the family only without any official involvement or political element at all, while there was simply no explanation from him as to why it was wrong of the Board to accede to his request to withdraw his appeal at his own volition.  As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

13.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.

14.In the Applicant’s case, the fact is that it has been correctly established by the Director in his 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, a decision also confirmed by the Board, 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.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 non-refoulement claim or in the Board’s decision allowing the Applicant to withdraw his appeal.

16.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given the latest confirmation by the Immigration Department of the Applicant’s recent departure of Hong Kong to return to Pakistan, I accordingly dismiss his leave application.

Dated the 19^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