Mahboob Ali Shan v. Torture Claims Appeal Board

HCAL 734/2018

[2020] HKCFI 2189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 734 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 24-year-old national of Pakistan who entered Hong Kong illegally on 20 June 2016 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 the family of his girlfriend’s family 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 Dilo Chak, Tehsil Jatlan, District Mirpur, Azad Kashmir, Pakistan.  After leaving school, he worked in his family’s construction business, and dated his girlfriend from neighbouring village.

3.In 2015 he proposed marriage to his girlfriend, but her family strongly opposed to his marriage proposal, and one day in April 2016 while the Applicant was talking to his girlfriend outside her house, her brother came out and when he saw the Applicant, he shouted at him who then ran away.

4.Later on the same day the Applicant received a telephone call from his younger brother that his girlfriend’s brother had come to his home with some men armed with wooden sticks looking for him, and when they could not find him, they beat his brother that caused bruises and cuts to his head and limbs.

5.Fearing for his own safety, the Applicant did not go home that night and took shelter in his friend’s home in District Mirpur.  On the following morning while he was driven by his friend home on a motorcycle, they were rammed from behind by his girlfriend’s brother and his men who proceeded to hit them with wooden sticks that both sustained multiple injuries, and before he left the brother warned the Applicant that if he did not stop seeing his sister, next time he would kill him.

6.After receiving medical treatments in a local clinic, the Applicant was afraid to return home and instead stayed at his friend’s place, but when he later heard that his girlfriend’s family had filed a false charge against him to the police, he felt that it was no longer safe to remain in Pakistan, and so on 16 June 2016 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 10 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 28 December 2016 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”).

8.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 girlfriend’s family upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention on their part to harm or kill him other than to deter him from seeing her or that he was being pursued by the police, that his problems with his girlfriend’s family 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 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 770,000 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 Lahore where it would be difficult if not impossible for his girlfriend’s family to locate him.

9.On 13 and 26 January 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 13 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 4 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the Applicant’s evidence as to his claim unreliable, inconsistent and incredible based primarily on hearsay and speculation that it did not accept that there would be any real risk of threats from his girlfriend’s family upon his return to Pakistan, and that in any event in the absence of any official involvement that state or police protection would be available to him if resorted to, as well as reasonable internal relocation within Pakistan for him to move safely to other area away from his home district without any risk of being located by his perceived enemies that his claim for non-refoulement protection failed on all applicable grounds.   

11.On 26 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 stated that the Board’s decision was unfair and unreasonable without providing any particulars or elaboration why it was so, nor did he put forward any 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 being identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12.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.

13.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 51 – 63 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.  

14.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.     

15.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.

16.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