Maroof Ahmed v. Torture Claims Appeal Board and Another

HCAL 400/2018

[2019] HKCFI 2367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 400 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 42-year-old national of Pakistan who last entered Hong Kong illegally on 22 May 2014 and was arrested by police on 29 May 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the family of his deceased wife who objected to their marriage.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in South Mirpur, Azad Kashmir, Pakistan.  After leaving school he worked in a vehicle repair workshop, became a supporter of the political party Muttahida Qaumi Movement (“MQM”), and dated his wife who was his former schoolmate.

3.As his wife was a supporter of rival political party Pakistan Muslim League (Nawaz) (“PML(N)”) in which her father was an influential local member, and due to their different and rival political conviction, his wife’s father and family were strongly opposed to their relationship, but his wife just ignored it and carried on with their relationship.

4.In March 2004 the Applicant travelled to Hong Kong as a visitor but overstayed, for which he was subsequently arrested by police and later convicted and sentenced by the court to prison for five months, and upon his discharge from prison he was repatriated to Pakistan in July 2004. 

5.In 2006 the Applicant and his wife eloped to Mirpur in Azad Kashmir where they secretly married without the approval of her family, and thereafter they moved to Jhelum for two months before eventually returning to the Applicant’s home in South Mirpur.

6.Shortly thereafter his wife’s parents came and forcibly took his wife away and threatened the Applicant to stay away from her or else they would have him killed.

7.Thereafter the Applicant was only able to see his wife occasionally behind the back of her parents, then in 2013 he was informed by a friend that his wife had died after being poisoned by her parents, and then he received a phone call from her father threatening him that now that he had killed his wife, he would come after him to finish him off if he remained in Mirpur.

8.On the same evening a cousin of his wife’s father known to be a gangster came to the Applicant’s home and fired several shots into the air to threaten him.  On the next morning the Applicant reported the incidents to the police but they failed to follow up with any action.

9.On his way home from the police station, the Applicant ran into the cousin of his wife’s father who drove by in a vehicle and fired a shot at the Applicant and hit him in his left elbow that he had to be brought to the hospital for medical treatment.

10.After his discharge from the hospital the Applicant fled to take shelter in a friend’s place in Peshawar City where he stayed without incidents, but when he heard that his wife’s father had passed away but the threats still remained from other members of his family, he decided that it was no longer safe to remain in Pakistan, and so in May 2016 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 24 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

11.By a Notice of Decision dated 10 January 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”).

12.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 his deceased wife’s family to the Applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that since the death of his wife’s father it is doubtful that the rest of her family would still have any adverse interest in him after all these years, that in any event 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 201 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 Karachi where it would be difficult if not impossible for his wife’s family to locate him.

13.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 28 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 5 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

14.In its decision the Board found various aspect of the Applicant’s case doubtful,that since the death of his wife’s father there was no evidence of any danger or trouble from her family to the Applicant during his stay in Peshawar City prior to his departure of Pakistan, and that in any event reasonable internal relocation was available that it would not be unduly harsh for the Applicant to relocate to other parts of Pakistan such as Jhelum or Peshawar City where he will be safe from his wife’s family that his claim for non-refoulement protection failed on all applicable grounds.

15.On 12 March 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 in his Form,and in his supporting affirmation of the same date he merely stated that the Board’s decision is not fair and is unreasonable without providing any particulars or specifics or elaboration as to how it is so.  As such I do not find any basis or merit in this complaint of his, nor is it reasonably arguable for his intended challenge.

16.As has been repeatedly emphasized by the Court of Appeal, 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.

17.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.

18.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.

19.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 November 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