Muhammad Bilal Alias and Another v. Torture Claims Appeal Board

HCAL 634/2018

[2020] HKCFI 2034

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 634 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 37-year-old national of Pakistan who entered Hong Kong illegally on 24 October 2008 and was arrested by police on 26 October 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 the family of his cousin who blamed him for the accidental death of the cousin.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sialkot, Punjab, Pakistan.  After leaving school he worked in a trading company before running his own business trading mobile phones and accessories in his home district.

3.One day in 2006, he took his paternal cousin and his friend to swim in a canal in the city during which an accident occurred that his cousin and his friend were drowned, and for which his cousin’s family blamed him that his cousin’s elder brothers even assaulted him by punching and kicking him, and threatened to kill him in revenge for the death of the cousin.

4.After the beating the Applicant fled to take shelter in his maternal uncle’s home, but when he heard that his cousin’s family were looking for him everywhere threatening to take revenge against him, and as they were influential in his home district with political connections, the Applicant felt that it was no longer safe for him to remain in Pakistan, and so on 13 April 2007 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 16 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 27 March 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”).

6.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 cousin’s family upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was a personal family 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 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 Islamabad where it would be difficult if not impossible for his cousin’s family to locate him.

7.On 7 April 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 9 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 15 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found some inconsistencies and irregularities in the Applicant’s evidence which undermined the reliability of his claim but was prepared to give him the benefit of the doubts and accepted his core claim about being threatened by his cousin’s family over the death of his cousin, but found no official involvement in those threats that state/police protection would be available to the Applicant if needed as well as reasonable internal relocation for the Applicant to move safely to other part of Pakistan away from his home district in large cities such as Karachi where he can re-establish his life and work without any risk of being located by his cousin’s family that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.

9.On 13 April 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 because his life would still be in danger but without putting forward any valid or proper grounds for his intended application.  As such and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the Board’s decision.

10.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.   

11.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 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.     

12.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.

13.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 19^th 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