Asjad Baig v. Torture Claims Appeal Board

HCAL 494/2018

[2020] HKCFI 1637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 494 of 2018

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 39-year-old national of Pakistan who last entered Hong Kong illegally on 2 January 2016 and was arrested by police on the same day.  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 certain local villagers over a land dispute and/or by the police over some shooting incident resultant from the land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kowankh, Gujrat District, Punjab, Pakistan.  After leaving school he worked in the farmland inherited from his father in his home village.  One day in 2007 his cousin had a dispute with his friend Naeem in the village and was shot by Naeem.  After his cousin was brought to the hospital for treatment, the Applicant confronted Naeem on the phone over the shooting during which Naeem warned him to be careful with his words.

3.About 2 weeks later one day while the Applicant was working on his farm, he saw Naeem coming from afar with several men carrying weapons, he became fearful that they were coming to kill him, and so he immediately ran from the scene and fled to Karachi, and to save his life by leaving the country as Naeem was an influential member of the political party Pakistan Muslim League (Q) (“PML(Q)”), he therefore departed Pakistan in early 2007 for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he raised a torture claim, and whilst being released on recognizance pending determination of his torture claim, he was arrested again for possessing an identity card of another person and for undertaking unauthorized employment for which he was later convicted and sentenced to prison for 20 months.

4.Eventually his torture claim was rejected on 8 August 2012 by the Immigration Department, and on 6 November 2012 he was repatriated to Pakistan where he returned to his home village where he got married and started a family by resuming working on his farmland.

5.One day in May 2013 he was approached by Naeem that if he wanted to resolve the dispute between them, he should sell his farmland to his wealthy friends from the neighbouring village, but the Applicant insisted that his farmland was not for sale and rejected Naeem’s offer.

6.Later in the same month the Applicant went to work in Lahore, but in June 2013 when he heard that some men had come onto his farmland and started to erect a structure on it, he then called Naeem who admitted that his wealthy friends had decided to take over the land by force since he was not willing to sell, and so the Applicant rushed back to his home village, and together with his cousin and friends he went onto his farmland to confront those men working there, but the confrontation turned violent when some of those men started firing their guns at them, while the Applicant’s cousin and friends also returned fire with their pistols, resulting in both his cousin and two of those men being wounded.

7.The Applicant who was not involved in any shooting then brought his cousin to the local hospital for treatments, and later when he heard that one of the men who was shot later died from his injuries, he feared that the police would come after him, and so he fled to Sialkot and Lahore and other places, but when he heard that the police were still looking for him everywhere, he decided that it was no longer safe to remain in Pakistan, and so in early 2014 he departed for Macau where he stayed for about a month before returning to Pakistan, and in December 2014 he again departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 11 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

8.By a Notice of Decision dated 10 May 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 Ordinance, Cap 383 (“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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by Naeem or his friends or by the police upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, nor is there any evidence that he was being pursued by the local police before he departed Pakistan, that his problem with Naeem and his friends was a private land dispute without 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 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 working 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 Naeem or his friends to locate him.

10.On 19 May 2017 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 19 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 13 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found no evidence that Naeem or his friends had done anything to harm the Applicant, that their land dispute was a private matter without any official involvement that state protection would be available to the Applicant as well as reasonable internal relocation within Pakistan for him to move safely to other area away from his home district without any risk of being located by them, whereas the police were perfectly entitled to go after him for investigation as to the shooting incident and hence by fleeing from them would make the Applicant a fugitive from justice rather than as a refugee for protection that his non-refoulment claim failed on all applicable grounds.    

12.On 27 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 repeated his claim that his life would be in danger if refouled to Pakistan without putting forward any valid or proper ground for his intended challenge, nor did he request for any oral hearing for his application.  As such and in the absence of any reasonably arguable ground showing any error of law or procedural unfairness in the process before the Board or in its decision by the Applicant, I do not find any basis or merit in his intended challenge.  

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.Furthermore, the fact 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 from Naeem or his friends 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 23^rd 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