KHAN SAJID ALI v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 2090/2020 [2021] HKCFI 3740 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2090 of 2020 BETWEEN Khan Sajid Ali Applicant and Torture Claims Appeal Board Putative Respondent and Director of Immigration Putative Interested Party 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 (counsel for) 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: The Applicant is a 38-year-old national of Pakistan who entered Hong Kong illegally on 18 January 2016 and surrendered to the Immigration Department on 4 February 2016 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his family and/or the local Shia community for converting his Islamic faith from Shia Islam to Sunni Islam. He was subsequently released on recognizance pending the determination of his claim. The Applicant was born and raised in Chak, District Faisalabad, Punjab, Pakistan as a Shia Muslim. After leaving school he farmed in his family’s land in the home village where his family members were all Shia Muslims. However, under the influence of his Sunni Muslim friends from his home village, the Applicant became interested in the Sunni sect of the Islamic religion and eventually converted his religious faith to become a Sunni Muslim, but when it was discovered by his family and the Shia community, they were furious with him and threatened to kill him unless he converted back to be a Shia Muslim, and fearing for his life, the Applicant therefore fled to Multan City, and after he was attacked by some Shia Muslims there, he then moved to Karachi and later to Lahore, and eventually on 14 January 2016 he departed Pakistan for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). By a Notice of Decision dated 7 December 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”). In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found substantial grounds for believing that there will not be any real risk of him being harmed or killed by his perceived enemies upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that whatever adverse interest that his family or the local Shia community may have in him would have dissipated after all these years since he left the country, that in the absence of 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 207 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 part of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for his perceived enemies to locate him. On 20 December 2018 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 26 May 2020 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 7 July 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director. In its decision the Board found the Applicant’s evidence inconsistent, exaggerated and implausible in the important aspect of his account that it doubted the credibility of his claim, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located by his family members or the local Shia community that his claim for non-refoulement protection failed on all applicable grounds. On 19 October 2020 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, and in his supporting affirmation of the same date he complained that the Board should have considered his BOR 2 claim separately without providing any explanation as to why, nor did he put forth any proper ground for his intended challenge. By then the Applicant was also 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 for extending the period within which the application shall be made. As the last day of the three-month period for him to file his Form 86 fell on 7 October 2020, the Applicant was therefore 12 days 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. In the Applicant’s case, a delay of 12 days cannot be regarded as insignificant, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any reason for his significant delay. As for the merits, if any, of the intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge, 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 merits in his intended application either. 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. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 38 – 55 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board. The fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if true 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. 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. Furthermore, the Applicant recently on 16 November 2021 filed an affirmation requesting to “cancel” his judicial review application as he has settled his problem in his home country and that he wants to go home. In the premises, and as I am for the reasons given 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 delay, and given his latest confirmation that his problem in his home country has been settled, I accede to his request and accordingly dismiss his leave application. Dated the 14th day of December 2021. (K.H. LI) for Registrar, High Court 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 Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent to the Applicant on 14 December 2021 Khan Sajid Ali Applicant’s ref. no.: Nil. Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 14 December 2021 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 14958/18/12/315/P2993 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4718/18 [T9I75](formerly RBCZ 12340/16)(PSO) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1