Butt Anjum Saleem v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 469/2018

[2020] HKCFI 1694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 469 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 36-year-old national of Pakistan who entered Hong Kong illegally on 8 November 2009 and was arrested by police on 12 November 2009.  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 certain local residents of different caste over some personal disputes in his home district.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in a family of the Butt caste in Ward Hajipura, City Wazirabad, District Gujranwala, Pakistan where the majority of the local residents were of the Jutt caste and with unwritten rules that residents of the two castes would not socialize or enter each other’s section of the district.

3.The Applicant’s younger brother however was not willing to comply with these rules and had therefore made many enemies with the Jutt residents.  One evening in late 2008 while he was on his way home, he was beaten up by a group of Jutt residents that his head was bleeding and with bruises all over his body.

4.After the Applicant reported the matter to the police having identified the culprits who attacked his brother, one evening those Jutt residents came to the Applicant’s home shouting threats against him and his family until the Applicant went out to confront them with a pistol that they then left.

5.However, on the following day those Jutt residents complained to the police of being threatened by the Applicant with a gun.  Fearing that he would be arrested by the police, the Applicant therefore fled from his home to hide in his grandparents’ place.

6.Not being able to find the Applicant, those Jutt residents then made a false claim against his brother to the police.  As a result the Applicant and his brother were arrested and detained in the police station for interrogation until they were subsequently released on bail put up by lawyers hired by their parents.

7.Eventually those false charges were dropped by the Jutt residents, but one night in October 2008 the Applicant was confronted by a Jutt resident who then shot him in his leg that he was subsequently taken to the hospital for medical treatment.

8.Upon release from the hospital, the Applicant feared further attacks by the Jutt residents, and decided to leave Pakistan, and so on 1 November 2009 he 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 31 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

9.By a Notice of Decision dated 30 October 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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 the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

10.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local Jutt residents upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that after all these years it was doubtful that they would still have any adverse interest in him, that in any event it was a private personal 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 (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 million people spread across a vast territory of more than 770,000 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 those local Jutt residents to locate him.

11.By a Notice of Further Decision dated 1 June 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation 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”).

12.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, the notice of which was filed on 10 November 2015, and for which he attended an oral hearing on 13 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 22 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.In its decision the Board found a number of inconsistencies in the Applicant’s evidence that undermined the credibility of his claim, and that in any event with state/police protection available as well as reasonable internal relocation for him to move safely to other parts of Pakistan such as Lahore or Karachi where he can re-establish his life and work without any risk of harm from those local Jutt residents from his home district that his claim for non-refoulement protection failed on all applicable grounds. 

14.On 22 March 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) irrationality in failure to consider the concept of state acquiescence;

(2) procedural impropriety in making insufficient inquiry;

(3) failure to provide adequate reasons as to decision made;

(4) procedural impropriety/unfairness in failure to investigate into COI of Pakistan;

(5) irrationality in failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6) irrationality in failure to consider a consistent system of human right violations;

(7) irrationality in failure 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/or psychiatric reports and/or evaluations;

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

(11) failure to give reasonable basis for rejecting his claim;

(12) failure to consider the extended form state acquiescence;

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

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

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

15.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 make sufficient inquiry or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was the concept of state acquiescence to his claim, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or how did the adjudicator apply the incorrect standard of proof or fail to give reasonable basis for rejecting his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

16.As for his complaint under his last ground that the adjudicator being a different person than the interviewing officer of the Immigration Department in hearing his appeal, I fail to see any rationale for insisting that the Director or his representative to hear the appeal, as 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 fail to see how he could be prejudiced or adversely affected under such arrangement.  There is simply no basis or merit in this complaint of the Applicant.  

17.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.

18.In the Applicant’s case, 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 his 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.     

19.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.

20.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 27^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