Zeb Hassan v. Torture Claims Appeal Board/ Non- Refoulement Claims Petition Office

HCAL 583/2017

[2019] HKCFI 356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 583 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 the Applicant being present / absent 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 35-year-old national of Pakistan who entered Hong Kong illegally in early March 2009 and was arrested by police on 7 March 2009.  After being referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle over certain land dispute.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Village Misri Banda, District Nowshera, Pakhtunkhwa, Pakistan.  After leaving school he for a time worked as a construction worker in United Arab Emirates before returning to his home village in 2007 to start his own electronic shop.

3.In about February 2009 when the applicant learnt that prior to the death of his grandfather his paternal uncle QS had tricked him into passing his ownership of the family’s farmland to QS, the applicant started to raise issue of ownership of the farmland with QS by calling him on the telephone as QS has since moved to reside in Hong Kong and asked him to return the farmland to the rest of the family, and when QS refused they broke into an argument during which QS threatened that he would not spare the applicant if he continued to raise the issue with him.

4.Thereafter the applicant received two further telephone calls from QS who threatened that the applicant should leave the village or else he would not spare him.  As a result the applicant became concerned for his safety and left home to take shelter at his sister’s home in another village where he stayed for about a week without any incident, but when he learnt that QS had been looking for him, he felt it was no longer safe to remain in Pakistan and so on 4 March 2009 he departed for China, and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 28 April 2015 with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 25 June 2015 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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”).

6.In his decision the Director found the absence or low intensity and frequency of ill-treatment from QS in the past indicative of small future risk of harm to the applicant upon his return to Pakistan, that the conduct of QS over the years show no real intention to harm or kill the applicant and that any such intention if existed should have dissipated after all these years, that their dispute is a private family matter without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 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 safely to other areas away from his home district such as Islamabad, Faisalabad or Lahore where it would be difficult if not impossible for QS to locate him.  

7.By a Notice of Further Decision dated 26 October 2016 the Director again rejected the applicant’s claim in the absence of any response from the applicant to an earlier invitation for him to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 9 July 2015, and for which he attended an oral hearing on 28 December 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 7 July 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found that even on his own case neither the applicant nor any of his family has been subjected to any harm or act of violence that would put him within any of the applicable grounds, that even if the threats from QS made in a few telephone conversations back in 2009 still persisted after all these years, such risk was confined to the applicant’s home district and could be effectively eliminated by internal relocation to elsewhere in Pakistan without any undue hardship to the applicant.   

10.On 4 September 2017 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 the Form, and in his supporting affirmation of the same date he simply deposed that:

“ I beg to say that my life is in danger in Pakistan, I cannot go back my country. I begging and requesting that re-study my case.” [sic]

11.He then went on to exhibit a copy of the Board’s decision to his affirmation and did not request any oral hearing for his application.  Accordingly no hearing was held, and up to now no ground has been put forward by the applicant for his intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, that the proper occasion for an applicant to present and articulate such a claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them that the court will not usurp their roles as primary decision makers, and that in the absence of any legal error being identified by the applicant, judicial review is not an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

13.As already noted the applicant in the present case has not put forward any ground in support of his application, nor has he identified any legal errors in either of the decisions of the Director and Board.  The fact is that it has been clearly established by both 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 parts of Pakistan, they were entitled to come to their conclusion that there is no justification to afford the applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.In the premises and having proceeded to consider both decisions of 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 13^th day of February 2019.

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