Kareem Rukhsana v. Torture Claims Appeal Board and Another

HCAL 970/2017

[2018] HKCFI 1586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 970 of 2017

BETWEEN

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 41-year-old national of Pakistan who last arrived in Hong Kong on 5 October 2011 with permission to remain as a foreign domestic helper until the expiration of her employment contract on 14 May 2012 or within two weeks of its early termination.  However, on 19 October 2011 she was arrested by police for theft and her employment contract was therefore terminated.  She was subsequently convicted and sentenced to two months imprisonment, and upon discharge she was referred to the Immigration Department when she lodged a torture claim on 22 December 2011 on the basis that if she returned to Pakistan she would be harmed or killed by her elder brother and/or the religious leaders for having a Shia Muslim boyfriend as she and her family are Sunni Muslims.  She has since been released on recognizance pending the determination of her claim.

2.The applicant was born and raised in Nayi Abaadi, Gujranwala, Pakistan to a family of Sunni Muslims with six siblings.  After leaving school she worked as a domestic helper first in Pakistan and later in Hong Kong since 2000.  In December 2008 when she returned home for visit, she met a Shia Muslim man AS and started going out with him.  In September 2009 she left her job in Hong Kong to return to Pakistan with the intention of marrying AS, but when they were seen by her elder brother ND, he slapped her on the face and told her to go home and never to see AS again or else he would kill her.

3.When the news of her going out with a Shia man were spread in the village, some of the village religious leaders told her brother ND that she would no longer be regarded as a Sunni Muslim and that she should be punished and killed.  Fearing for her life the applicant therefore left Pakistan on 14 May 2010 to return to Hong Kong to continue her job as a domestic helper.  However, in September 2011 when she returned to Pakistan to visit her ailing mother, she was locked up by ND in her room until 4 October 2011 when she was able to escape and returned to Hong Kong on the following day.  After ND found out about her escape, he was furious and swore to kill her if she ever returned to Pakistan, and so after her employment was terminated in October 2011 she did not dare to return to Pakistan and therefore lodged her torture claim under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”) which was rejected by the Immigration Department on 30 March 2012, but upon the commencement of the Unified Screening Mechanism and after she married a Sunni Muslim man who is also a torture claimant in Hong Kong, she submitted a Supplementary Claim Form on 25 April 2016 for non-refoulement claim with legal representation from the Duty Lawyer Service.     

4.By a Notice of Decision dated 24 January 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of her absolute and 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”).

5.In his decision the Director found the threats from the elder brother ND were of low intensity and a domestic dispute from which state and police protection would be available to the applicant upon her return to Pakistan, that she has since married a Sunni Muslim man and there is therefore no further reason for her brother to kill her, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 201 million people spread across a vast territory of more than 796,000 square kilometers that she can safely move with her husband to other areas away from her home district such as Karachi or Faisalabad where it is well beyond the resources or capability of her brother to locate her.   

6.On 7 February 2017 the applicant filed her appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which she attended an oral hearing on 24 August 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 22 September 2017 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found that if the risk of harm from her elder brother still persists now that the applicant has married a Sunni Muslim man, state protection and reasonable internal relocation alternatives would still be available to her that it would not be unduly harsh for her as an able-bodied adult with local and overseas work experience to relocate to other major urban area in Pakistan that it would not be justified to afford her with non-refoulement protection in Hong Kong.  

8.On 28 November 2017 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it she put forward the following grounds for her intended challenge:

(1)     that the Director failed to examine or give sufficient weight to the extended concept of state acquiescence in the consideration of the effectiveness of state protection to its citizens from torture;

(2)     that the Director failed to properly assess corruptions in the police in the consideration of her claim;

(3)     that the Director failed to properly consider or take unto account of the relevant COI in the assessment of state and police protection to its citizens;

(4)     that the Director failed to take into account or consideration of the relevant COI and evidence in the consideration of her claim;

(5)     that the Director failed to apply high standards of fairness in the consideration of her claim resulting in his decision being irrational or Wednesbury unreasonable;

(6)     that the adjudicator failed to make sufficient enquiry before finalizing her decision;

(7)     that the adjudicator failed to consider or give sufficient weight to the fact that the incident may lead to mental injuries to the applicant; and

(8)     that the adjudicator failed to advice the applicant to obtain medical reports and/or evidence from Pakistan authorities when deciding the seriousness of the injuries suffered by the applicant.  

9.These are however all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the adjudicator had erred in their decisions, or in what way did the Director fail to take into account of relevant COI or make enquiry into the corruptions in police and effectiveness of state protection in Pakistan, or what is the relevancy of the concept of state acquiescence to her case which was essentially a domestic dispute within her family, or where is the evidence to justify any medical report on any injury, physical or mental, suffered by her other than from a slap on her face by her elder brother back in 2009.  None of these assertions were elaborated or presented with any particulars or specifics or justification by the applicant, and I do not find any basis or merits in any of them.

10.In my judgment that both the Director and the adjudicator were entitled to find even on the facts of the applicant’s own case that any risk of harms from her elder brother would have been negated by the long lapse of time and her marriage since to a Sunni Muslim, and to conclude that the applicant had failed to show that it was unsafe and therefore unreasonable for her to relocate to any of the alternative places suggested by the Director and the Board, and as there is no suggestion that it would otherwise be unreasonable or unduly harsh to require her to do so, there is therefore no basis for interfering with the decisions of the Director or the Board.

11.In the premises and having proceeded to consider 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.

12.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 her leave application.

Dated the 20^th day of July 2018.

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