William Saleem Alias Sahael Victor Alias Sohail Victor Alias Marik William Alias Sam William v. Torture Claims Appeal Board and Another

HCAL 673/2018

[2020] HKCFI 2219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 673 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 49-year-old national of Pakistan who had repeatedly over the past 20 years entered Hong Kong under various alias and was then deported after overstaying his visa.  In 2006 he entered Hong Kong illegally from China, and in 2009 he was arrested by police for inflicting grievous bodily harm for which he was subsequently convicted and sentenced to prison for 5 months, and upon his release he raised a torture claim with the Immigration Department on the basis that if he returned to Pakistan he would be harmed or killed by the local Muslims for religious reasons, and after his torture claim was rejected, he then raised a non-refoulement claim for protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Lahore, Pakistan where he and his siblings were all raised as Christians.  After leaving school he worked in various jobs and continued to live with his widowed mother in Lahore.

3.In about 1990 a Muslim woman who worked as a prostitute placed her infant daughter in the care of the Applicant’s mother and then disappeared. Thereafter the Applicant’s mother raised her child as a Christian in her family.

4.One day in 2003 the Muslim woman appeared to demand for the return of her daughter who however refused to go with her, and when the Muslim woman realized that the Applicant’s mother had raised her daughter as a Christian, she became furious and incited the local gangsters and other Muslims in the neighbourhood against the Applicant’s family that his mother had to hide the daughter of the Muslim woman and the Applicant’s other siblings in some shelter home to avoid further confrontations with that woman and other Muslims.

5.At that time the Applicant and his brother were running a garment business in Lahore with business connections in Hong Kong and other South East Asian cities, but due to harassments and threats from the local Muslims in Lahore against his family, his brother subsequently had to flee to Canada, while the Applicant had to do the same by coming to Hong Kong under various aliases in order to enter and stay, and on the last occasion in 2009 he was arrested by police and was subsequently convicted for the criminal offence of inflicting grievous bodily harm, and upon his release from prison with a removal order issued against him, he then raised his non-refoulement claim for protection for which he completed a Supplementary Claim Form on 14 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 14 March 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

7.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 that Muslim woman and other local Muslims upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no evidence of any risk of threats or harm from those Muslims directed against him, that in any event in the absence of 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 199 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 where it would be difficult if not impossible for his perceived enemies to locate him.

8.The Applicant then 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 6 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the Applicant’s evidence of risk of harm from the Muslims vague and confused, the credibility of which was further undermined by his history of entering Hong Kong under various aliases and remaining illegally for so long and his failure to make his claim until his arrest in 2009 that it did not accept that he would face any real and substantial risk of harm upon his return to Pakistan after all these years, and that with reasonable internal relocation within Pakistan available for him to move safely to other area away from his home district without any risk of being located by those local Muslims that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 18 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, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached a copy the Board’s decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.  As such and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis 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 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.          

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 9^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