Arif Hussain v. Torture Claims Appeal Board and Another

HCAL 691/2018

[2020] HKCFI 2144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 691 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 42-year-old national of Pakistan who entered Hong Kong illegally on 27 August 2009 and was arrested by police on the same day.  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 his uncle and his men over some monetary dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Gunj Mughalpura, Lahore, Pakistan.  After leaving school he worked in the garment and textile industry and lived with his parents in the home district.

3.In 2008 his father together with his uncle bought a piece of land in Rohi Nala in equal share for investment, and in 2009 they agreed to sell the land at a profit, for which his father let his uncle handled the sale.  However, when his uncle failed to pay his father his full share of the profit, the Applicant went to his uncle’s home to quarrel with him, during which the elder son of his uncle pushed the Applicant and hit him with a wooden stick which injured his head and legs causing cuts and bleeding.

4.Afterwards the Applicant reported the incident to the police, but on the same evening when his uncle and his elder son with some men came to the Applicant’s home making threats to kill him for reporting the matter to the police, the Applicant became fearful for his safety and fled from his home to hide in a friend’s place in Ram Garh, Lahore, but later when he heard that his uncle had sent men looking for him everywhere, and as his uncle was powerful and influential in the home district with political connections, the Applicant was advised by his family to leave the country to save his life, and so on 17 August 2009 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 3 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 12 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”).

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 uncle and his men upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was a private monetary dispute between the Applicant’s father and his uncle 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 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 or Rawalpindi where it would be difficult if not impossible for his uncle or his men to locate him.

7.On 22 May 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 27 December 2017 before the Board during which he declined to give any further evidence but did answer questions raised of his claim by the adjudicator for the Board.  On 13 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted that there may have been a monetary dispute between his father and his uncle but found the Applicant’s claim of fear of harm from his uncle unconvincing and lacking credibility that it was satisfied that the whole case put forward by him regarding his fear of his uncle and his men and hence his fear of return to Pakistan is disingenuous, and that in any event with reasonable internal relocation within Pakistan a viable option for him to safely move away from his home district in some large cities where he can re-establish his life and career without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.     

9.On 20 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) that police in Pakistan is inefficient and that state protection is insufficient to protect him upon his return to Pakistan; and

(2)  that the COI relied on by the Director or the Board do not actually reflect the real situation for normal citizens in Pakistan resulting in their failure to properly understand how corrupt and ineffective the police is in Pakistan in assessing the risk to the Applicant’s life in his home country.  

10.These are however 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 Director or the Board had erred in their decisions, or in what way is state protection inefficient in Pakistan or which COI fail to actually reflect the real situation in Pakistan, or how did the Director or the Board fail to properly understand the efficiency of the police in Pakistan in their assessment of the risk to the Applicant upon his return to Pakistan.  None of these assertions were properly elaborated or presented with any particulars or specifics by the Applicant.  As such I do not find either grounds 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 50 – 71 of its decision with the benefit of hearing him in his answers to questions raised of his claim, 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.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.

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 31^st 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