Sohail Adil v. Torture Claims Appeal Board and Another

HCAL 2076/2018

[2020] HKCFI 2244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2076 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 30-year-old national of Pakistan who entered Hong Kong illegally on 30 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 paternal uncle and his sons over personal disputes between the two families.  He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Village Khatana, Gujrat, Pakistan.  After leaving school he worked in a bakery in Karachi and then as a delivery worker in Lahore.

3.In early 2013 he returned to his home village to live with his parents.  One day in May 2013 he saw his father arguing with his paternal uncle and his sons who lived in the neighbourhood over some personal disputes during which the Applicant and his younger brother joined in which deteriorated into a fight when they hit each other with wooden sticks until their neighbours intervened, and then later his father resolved the dispute amicably with his uncle.

4.However, later when the Applicant was told by his family that the fight was in fact part of an earlier dispute between the two families, and although their dispute appeared to have been resolved, the Applicant was still concerned for his own safety, and so in June 2013 he left for Lahore, and on 23 September 2013 he departed Pakistan 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 26 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 19 November 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 sons 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 family dispute between them without any official involvement that state/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 area of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for his uncle or his sons to locate him.   

7.By a Notice of Further Decision dated 16 March 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation for him to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 3 December 2015, and for which he attended an oral hearing on 15 March 2018 before the Board during which he however declined to give any evidence or to answer any questions put to him by the adjudicator for the Board.  On 20 September 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found in the absence of any oral evidence from the Applicant and his decline to answer questions raised of his claim that on the materials and information before it that upon the family dispute being resolved between his father and uncle that there is no basis for the Applicant to fear of any further harm from his uncle or his sons, and that in any event in the absence of any official involvement in what would at the highest be described as a private family affair that state/police would be available to the Applicant upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds. 

10.On 2 October 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 repeated his claim that he would be killed if he were to go back to his home country but without putting forward any proper ground for his intended challenge, nor did he appear at the scheduled hearing of 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 where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.The fact is 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 14^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