Ahmed Sattar v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 504/2018

[2020] HKCFI 1677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 504 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 26-year-old national of Pakistan who entered Hong Kong illegally on 19 April 2015 and surrendered to the Immigration Department on 4 June 2015 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the brothers of his former girlfriend who objected to their relationship.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Mallu, Tehsil Hazro, District Attock, Pakistan.  In 2008 while at the age 14 and still in school, he started dating his former girlfriend from the same village, but as she was from a wealthy and prominent family with political connections and due to their different status, they kept their relationship a secret from her family.

3.However, one day in 2011 after their relationship had been discovered by her 4 brothers, the Applicant was confronted by them on the street when they demanded that he stopped seeing their sister immediately, and threatened to kill him if he did not do so.

4.The Applicant then sought help from the village elders over the matters, and a meeting was called for the two families to meet to discuss marriage between the Applicant and his girlfriend, but his girlfriend’s brothers who attended the meeting refused to allow any marriage between them, and instead accused the Applicant of humiliating their family and threatened to kill him to safeguard the name and reputation of their family.

5.Afterwards one day while the Applicant was on the street, he was ambushed by his girlfriend’s brothers who attacked him with wooden sticks that he lost consciousness and fell onto the ground.  He was subsequently taken to the hospital for treatments to cuts and bruises all over his body.

6.Upon his discharge from the hospital, the Applicant made a report to the police, but instead he was accused of defaming his girlfriend’s family, and was detained for interrogation and only released after his parents hired a lawyer to bail him out.

7.As he was fearful that his girlfriend’s brothers would be looking for him, the Applicant therefore fled to Islamabad to take shelter in a friend’s place, but one day when he was approached by a stranger on the street asking him for his name, he suspected that the man was sent by his girlfriend’s brothers looking for him, he therefore fled to Lahore where he found a job working in a restaurant.

8.One day in mid-2013 a man came into the restaurant where the Applicant was working to threaten him that he had been sent to kill him, and that there was nowhere he could hide, but as there were many people in the restaurant, the man did not do anything and left.

9.Afterwards the Applicant fled to Karachi where he found a job working as a labourer in an oil company.  One day in late 2014 while he was transporting oil products on a truck for the company, he was shot at by some unknown men on motorcycle but was unhurt.

10.After those men had left, the Applicant reported the matter to the police, but when the police refused to accept his case, he felt that it was no longer safe to remain in Pakistan, and so on 16 April 2015 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 11 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

11.Whilst being released on recognizance pending determination of his claim, the Applicant was arrested by the police on 30 June 2016 for possession of an identity card related to another person for which he was later convicted and sentenced to prison for 18 months.     

12.By a Notice of Decision dated 16 August 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”).

13.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 his former girlfriend’s brothers 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 is doubtful that they would still have any adverse interest in him, that it was a private personal dispute between them 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 202 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 young man with working experience to move to other part of Pakistan away from his home district in large cities such as Islamabad or Lahore where it would be difficult if not impossible for his former girlfriend’s brothers to locate him.

14.On 25 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 16 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 19 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

15.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence of being threatened by his former girlfriend’s brothers which indicated a lack of credibility in his claim, but that in any event due to effluxion of time and with adequate state protection as well as reasonable internal relocation available for the Applicant to move to another area within Pakistan where he can safely re-establish his life and work without any risk of being located by his former girlfriend’s brothers that his claim for non-refoulement protection failed on all applicable grounds.     

16.On 28 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, 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 still be in danger in his home country and that he needed time to resolve his problem before going home but without putting forward any valid or proper ground for his intended application.  Nor did he request for any oral hearing for his application.  As such and in the absence of any error of law or procedural unfairness in the Board’s decision clearly identified by the Applicant, I do not find any reasonably basis for his intended challenge.  

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 Board rejected his claim on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in 51 – 68 of its decision with the benefit of hearing his oral evidence and his 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.

19.Furthermore, 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.     

20.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.

21.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 3^rd day of August 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