Hussain Bashrat v. Torture Claims Appeal Board

HCAL 1350/2018

[2020] HKCFI 1432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1350 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 51-year-old national of Pakistan who entered Hong Kong illegally on 14 March 2008 and was arrested by police on 8 September 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a local leader of the Sunni religious/political group Sipah-e-Sahaba Pakistan (“SIPA”) over certain religious dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Shia Muslim in Jalalpur Jattan Town,Gujrat District, Punjab, Pakistan where his elder brother was an activist in Shia religious practice and frequently organized religious gathering for the local Shias.  After leaving school the Applicant worked as a carpenter in his home district, got married and raised a family of two children, and also participated in the local Shia religious gatherings organized by his elder brother.

3.Khalid was the leader of the local SIPA in Jalalpur Jattan Town who would frequentlydemand the local Shias to abandon their religious practice and to join their Sunni religious practice, and if they refused, he and his followers would threaten them.

4.One night in 2004 when the Applicant’s elder brother was on his way home, he raninto Khalid and his followers who demanded him to stop organizing Shia religious activities,and when his brother refused, they broke into a heated argument during which Khalid pulled out a gun, shot and killed the Applicant’s brother.

5.After his brother’s death, the Applicant took over his duty in organizing religious activities for the local Shias, and eventually Khalid was arrested by the police and sent to prison by the court for killing the Applicant’s brother.

6.However, Khalid while in prison sent two of his men to threaten the Applicant and his family to forgive him so that he could be released early, and when the Applicant refused, his men threatened that when Khalid completed his imprisonment, he would kill the Applicant and his family.

7.The Applicant therefore reported the threats to the police, but when the police replied that since Khalid was already in prison and that they would not take any further action,the Applicant became fearful for himself and his family, he therefore moved his family to another town, while he himself on 11 March 2008 departed for China, and from there he later sneaked into Hong Kong and raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 27 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 26 July 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 Article2 (“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”).

9.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 Khalid and his men upon his return to Pakistan as low due to the absence of past ill-treatment from them, that Khalid’s group SIPA had been banned by the Pakistani government as a terrorist group that his men would have been arrested by the police and hence state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information 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 Lahore or Islamabad where it would be difficult if not impossible for Khalid or his men to locate him.

10.On 8 August 2017 the Applicant 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 26 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 29 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board accepted that the Applicant may have a subjective fear of harm from Khalid and his men who had killed his elder brother, but was satisfied that state protection is available to him, and that he would also be able to relocate to another place in Pakistan, as he had done in the past without being located by Khalid or his men, and to safely establish a new life with his family such as in Rawalpindi where there is family support from his other brother that his claim for non-refoulement protection failed on all applicable grounds.

12.On 11 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 in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he cannot go back to his home country as his life would still be in danger, and that he be allowed to remain in Hong Kong until his problem back home is solved.  As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decisionbeing clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.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.

14.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.

15.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.

16.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 9^th day of July 2020.

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