Dost Usman v. Torture Claims Appeal Board

HCAL 1350/2022

[2024] HKCFI 3321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1350 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 12 December 2011 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, 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 girlfriend’s family who opposed their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Sohdra, Tehsil Wazir Abad, District Gujarnwala, Punjab, Pakistan. After leaving school he ran his own cosmetic shop in his home district, and in 2007 started dating his girlfriend from a wealthy family in the same village.

3.One day in 2008 the Applicant was approached by his girlfriend’s father and brothers who warned him to stay away from her due to their different wealth and status, and when the Applicant refused, they warned him that there would be serious consequences.

4.Shortly thereafter the Applicant was ambushed and assaulted by his girlfriend’s brothers on several occasions, and fearing for his safety he subsequently stopped seeing his girlfriend.

5.However, in 2010 the Applicant had a chance meeting with his former girlfriend and soon resumed their relationship, but later when he was told by some of his friends that his girlfriend’s family had planned to kill him, the Applicant became fearful for his life and fled to Karachi and Lahore, and on 8 December 2011 he departed 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 18 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 12 November 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 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 risk of harm from his former girlfriend’s family upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to deter him from the relationship, nor is it accepted that there would still be any adverse interest in him after all these years since he left his former girlfriend and departed the country, that in any event it was a private dispute between him and his former girlfriend’s family 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 204 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 anyone to locate him.

8.On 20 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it could be heard by the Board the Applicant on 13 January 2020 in writing applied to withdraw his appeal/petition as he considered it safe for him to return to his home country, and upon being satisfied that his application to withdraw his appeal was freely sought, that he understood the consequences of the withdrawal, and that he had good reason for his proposed withdrawal, the Board in writing on 1 April 2020 directed that the Applicant’s appeal/petition be withdrawn and that the Director’s decision be confirmed.

9.However, some 2 ½ years later on 28 October 2022 the Applicant filed his Form 86 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 asserted that the problem in his claim was solved back then but that the government has changed that it is difficult for him to settle down in Pakistan without providing any further details or particulars or elaboration as to how it is so, nor did he put forward any proper ground for his intended challenge of the Board’s decision to allow the withdrawal of his appeal at his own request and upon his confirmation that his claimed problem has been resolved that it was safe for him to return to Pakistan.

10.By then the Applicant was however 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.

11.As the last day of the three-month period for him to file his Form 86 fell on 1 July 2020, 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.

12.In the Applicant’s case, a delay of more than 2 years must be considered as substantial and inordinate, but for which he did not provide any explanation or reasons in his Form or affirmation that I am unable to see any good or valid reason for his such serious delay.

13.As for the merits, if any, of his intended application, as noted above that the Applicant’s bare assertions that the government in Pakistan has changed that it is difficult for him to settle down in his home country but without providing any relevant or necessary details or particulars or elaboration as to how it is so, which even if true cannot in my view form any proper basis for his change of mind about his intended appeal of the Director’s decision or to challenge of the Board’s decision. As such, and in the absence of any error of law or irrationality or procedural unfairness in the Board’s decision clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge or any merits in his intended application.

14.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.

15.In the Applicant’s case, the Board directed the withdrawal of his appeal at the Applicant’s own request and upon being satisfied that he had good reason to do so, and in the absence of any error of law or procedural unfairness in this decision of the Board being clearly and properly identified by the Applicant or any evidence that his decision to withdraw was for whatever reason not validly made or given, or any proper basis for his subsequent change of mind about appealing against the Director’s decision, I do not find any reasonably arguable basis to challenge the Board’s decision.

16.Furthermore, the fact is that it has also been rightly established by the Director in his decision that the risk of harm in the Applicant’s claim even on his own case and 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 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.

17.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 claim and in the Board’s decision to allow the withdrawal of his appeal/petition.

18.Moreover, the Applicant recently on 9 September 2024 filed an affirmation requesting to withdraw his application as he wants to return to his home country but without any further details as to what has happened to his asserted problem in Pakistan.

19.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 the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 28^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