Case Detail

HCAL 1393/2018

[2020] HKCFI 2667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1393 OF 2018

_____________

RE:

AWAN TANVEER AHMED

Applicant

_____________

Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 24 September 2020

Date of Decision: 2 November 2020

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D E C I S I O N

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1. On 16 January 2020 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2. The Applicant now by a summons issued on 29 June 2020 seeks extension of time to appeal against that decision, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A expired on 30 January 2020, and hence he was late by 5 months with his intended appeal.

3. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The AppealPanel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director ofImmigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur[2018] HKCA 226; and Re Saqlain Muhammad[2018] HKCA 346.

4. In the Applicant’s case, a delay of 5 months must be considered as significant, for which he explained at the hearing that he never received the decision in the mail and was only later informed by his immigration officer of the decision when by then he was already out of time with his intended appeal.

5. While the Applicant did not produce any documentary evidence in support of his claim, the fact is that the deadline for him to file his notice of appeal actually fell after the General Adjourned Period (“GAP”) for all court proceedings announced by the Judiciary on 29 January 2020 due to the Covid-19 pandemic resulting in general closure of the court and tribunal registries until 3 May 2020, and thereafter with staggered re-openings and with reduced operation hours and limited people flow. In the circumstances I accept these are justifications to extend time for the Applicant to file his appeal.

6. In the premises, and accordingly I grant the Applicant an extension of time to file his notice of appeal within 14 days of this order.

	(Bruno Chan)
	Deputy High Court Judge

The applicant appeared in person

HCAL 1393/2018

[2020] HKCFI 135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1393 of 2018

BETWEEN

	Awan Tanveer Ahmed	Applicant
	and
	Director of Immigration	Putative Respondent
	and
	Torture Claims Appeal Board	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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1. The Applicant is a 44-year-old national of Pakistan who had repeatedly entered Hong Kong under different names and passports when he would overstay and upon his arrest was repatriated to his home country, and in February 2012 he sneaked into Hong Kong from Mainland China and was subsequently arrested by police on 26 March 2013. After he had been charged, convicted and sentenced to imprisonment for 15 months for entering and remaining in Hong Kong illegally, and was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of rival political party Pakistan Muslim League (Q) (“PML(Q)”). He was subsequently released on recognizance pending the determination of his claim.

2. The Applicant was born and raised in Village Sagri, District Jhelum, Tehsil Dina,Punjab, Pakistan. After leaving school he came to Hong Kong on various occasions in the 1990s under different identities in search of jobs.

3. Upon returning to Pakistan in 2002 he followed in his grandfather’s footsteps to become a supporter of the political party Pakistan Muslim League (N) (“PML(N)”) and regularly attended its meeting and rallies in his home village.

4. In 2007 he represented his party to contest the local election for the village councilor against his opponent from rival PML(Q) when he would sometimes experience violent conflicts with their supporters during which he was threatened with violence, and on some occasions he became involved in fights between the supporters of the two rival parties when he sustained physical injuries inflicted by PML(Q) supporters.

5. Eventually he lost the election, but continued to work for PML(N) in his home village without holding any official post, but one day in 2011 some local PML(Q) supporterscame to his home to demand that he should quit his party, and when he refused, they proceeded to beat him with wooden sticks and rods. Afterwards the Applicant was taken to the local clinic for medical treatments to injuries sustained in his head and arms.

6. The Applicant did not report the incident to the police, but felt that it was no longer safe to remain in Pakistan, and so in September 2011 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 10 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7. By a Notice of Decision dated 17 November 2017 the Director of Immigration (“the 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 (“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”).

8. In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local PML(Q) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that given he did not hold any official position in his party that there is no evidence or reason that he had been specifically targeted by rival political party, 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 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 work 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 those PML(Q) supporters to locate him.

9. The Applicant then lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, and for which he attended an oral hearing on 16 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 4 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10. In its decision the Board found the Applicant’s account of his claim exaggerated, contradictory and inherently implausible, that it is not credible that after having lost his election for so many years that he would still be targeted by his rival political party, that whatever risk he may face is confined to his home village that with state protection and reasonable internal relocation for him to safely relocate to another part of Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

11. On 16 July 2018 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 other than a regurgitation of his claim as stated before and a statement that he feels that it is “a travesty of justice and contrary of common law and spirit of common humanity and brotherhood” to refuse his claim but without providing any particulars or elaboration as to why it was so. As such 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 with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the finding of the Board.

12. 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; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and NupurMst v Director of Immigration[2018] HKCA 524.

13. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim 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.

14. 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 their consideration and assessment of the Applicant’s claim.

15. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 16^th day of January 2020.

	(NG Hang-yin)
	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

Notesfor 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 16^th January 2020 Awan Tanveer Ahmed 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 16^th January 2020 Director of Immigration Putative Respondent’s ref. no.: QA T/C 2490/17 (Formerly RBCZ 2002134/14) Torture Claims Appeal Board Putative Interested Party’s ref. no.: USM 9278/17/11/289/P1821 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

AWAN TANVEER AHMED v. DIRECTOR OF IMMIGRATION [Decision on Leave Application]

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