Khan Masood v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2209/2018

[2020] HKCFI 1638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2209 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 43-year-old national of Pakistan who entered Hong Kong illegally on 7 May 2014 and was arrested by police on 17 June 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 his uncle and cousins over a land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dozai, Tehsil Hazro, Attock, Pakistan.  After leaving school he went to work as a cook in Karachi, and during holidays he would return to his home town to assist his elder brother in farming on his family’s farmland inherited from his grandfather, but which was disputed by his uncle over its ownership and the right to use it and had led to many conflicts and disputes between the two families over the years.

3.One day in mid-2013 while the Applicant and his elder brother were working on the farmland, his uncle sent his sons along to attack them by punching and kicking them so as to drive them off the land, and although the Applicant and his brother managed to escape, the Applicant sustained bruises all over his body as a result of the attack. 

4.After the attack the Applicant returned to work in Karachi without further incidents, but as he was still fearful of further attacks from his uncle who was influential in his home district with political connections, he therefore departed for China on 5 May 2014, 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 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 9 January 2018 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”).

6.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 and substantial risk of him being harmed or killed by his uncle or cousins upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from him, that it was a private land dispute between the Applicant’s family and his uncle’s family 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 (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 204 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 Lahore or Karachi where he had stayed without incidents and where it would be difficult if not impossible for his uncle or cousins to locate him.

7.On 12 January 2018 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 4 September 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found significant inconsistencies, discrepancies and contradictions in the Applicant’s evidence as to his claim of land dispute between his family and his uncle and cousins that it was not satisfied that he had any genuine fear of harm from them for departing from his home country or that his life would be at any risk from them upon his return to Pakistan that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.  

9.On 11 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) no reasonable basis for rejecting his claim on credibility;

(2) failure to consider the extended form of state acquiescence;

(3) failure to fully consider the COI reports in assessing the risk to the Applicant;

(4) irregularity of the decision-maker being a different person than the interviewing officer;

(5) procedural impropriety/unfairness in failing to investigate into COI of Pakistan;

(6) irrationality in failing to consider a consistent system of human rights violation;

(7) irrationality in failing to consider if state protection exists in Pakistan;

(8) irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts; 

(9) procedural impropriety in failing to call for psychological and psychiatric reports or evaluations;

(10) procedural impropriety in applying the incorrect standard of proof;

(11) no reasonable basis for rejecting the Applicant’s claim; and

(12) no proper basis for consideration of internal relocation.

10.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Board fail to consider the human rights situation in Pakistan, or in what way was extended state acquiescence relevant to his claim, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and I do not see any rationale for insisting that the same interviewing immigration officer be involved in his appeal before the Board when the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I do not see how there could be any irregularity in his appeal process before the Board.  As such and in the premises I do not find any of these grounds or complaints reasonably arguable for his intended challenge.

11.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.

12.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 16 – 46 of its decision with the benefit of hearing his oral evidence and answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

13.Furthermore, the fact that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

14.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.

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 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