Salam Abdus v. Torture Claims Appeal Board

HCAL 713/2018

[2020] HKCFI 2187

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 713 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 31-year-old national of Pakistan who entered Hong Kong illegally on 26 September 2013 and was arrested by police on the same day. 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 neighbours over their land dispute with his family in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Data, Tehsil Dina, District Jhelum, Punjab, Pakistan where his father owned a piece of land right next to his family home but which was disputed by his neighbor Hussain who also claimed to be the owner, and as a result had for years engaged in legal proceedings with his father over the dispute.

3.In late 2009 when the court ruled against Hussain over the land dispute, he and his sons started to harass the Applicant and his family, including on one occasion when they broke into the Applicant’s home to hit him and his family members with sticks and other weapons that two of Hussain’s sons were subsequently arrested by the police.

4.Thereafter the Hussains launched further legal proceedings against the Applicant’s family.  Due to the continuous harassments from them and the repeated court proceedings brought by them over the land, the Applicant decided not to get involved in the dispute any further by departing Pakistan on 21 August 2013 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 9 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 10 April 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 the Hussain family upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that his problem with his neighbours arose from a private personal land 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 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 Islamabad where it would be difficult if not impossible for the Hussain family to locate him.

7.On 20 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 1 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 16 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s claim of his family’s land dispute with the Hussains but found that it was his own personal decision not to handle the troubles arising out of the dispute for his family that caused him to leave Pakistan rather than any genuine fear of harm from the Hussain family that it did not accept that he would face a genuine or substantial risk of harm upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.       

9.On 24 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that the Board’s decision is not correct as it failed to consider the ground realities in Pakistan before reaching its decision but without providing any particulars or elaborations as to how it was so, nor did he put forward any other proper or valid ground for his intended challenge.  He did not request any oral hearing for his application either.  As such 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 for his intended challenge.

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 Board rejected his claim essentially on its finding that it was not out of genuine fear of harm from his neighbours over his family’s land dispute with the Hussains that caused him to leave Pakistan for the thorough and detailed analysis and reasoning set out in paragraphs 69 – 93 of its decision with the benefit of hearing him in his oral evidence and 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.  

12.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.     

13.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.

14.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 7^th day of September 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