Awais v. Torture Claims Appeal Board

HCAL 548/2018

[2020] HKCFI 2318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 548 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 26-year-old national of Pakistan who entered Hong Kong illegally on 5 July 2016 and was arrested by police on 11 July 2016.  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 certain fellow villagers over some personal dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Daman, Tehsil Hazro, District Attock, Punjab, Pakistan.  After leaving school he did not work and continued to reside with his parents and siblings in his home village.

3.One day in January 2016 while he and his 3 brothers came upon a group of young Shia men in the home village, they broke into an argument over some religious matters which deteriorated into a mass brawl between the two groups, resulting in both sides having suffered some bruises and superficial injuries.

4.However, after the incident the Applicant and his brothers started to receive threatening phone calls from those men, and as some of them were from wealthy families with political connections, the Applicant felt it was not safe to remain in Pakistan, and so on 8 May 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 (“NCF”) on 9 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 30 November 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 those villagers upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was just a private personal dispute between them 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 205 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 young man 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 those local villagers to locate him.

7.On 13 December 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 21 March 2018 before the Board during which he however declined to give any evidence or to answer any questions despite being invited to do so by the adjudicator for the Board.  On 23 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found such inconsistencies and discrepancies in the Applicant’s claim previously provided in his NCF to the Director but of which he declined to give any further evidence or to answers any questions raised of his claim at his appeal hearing that it was not satisfied that he had established his claim as alleged, and that in any event in the absence of any official involvement that with state/police protection available to the Applicant upon his return to Pakistan that it did not consider that he faces any real risk of the proscribed harms from those fellow villagers that his claim for non-refoulement protection failed on all applicable grounds.

9.On 3 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 claimed that the decision is unfair and unreasonable without providing any particulars or elaboration as to why it is so, or put forward any other proper ground for his intended application, nor did he request any oral hearing for his application.  As such 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 adverse finding on the credibility of his case for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 33 in its decision without any oral evidence or clarifications from the Applicant when he declined to do so during his appeal hearing, 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 is that it has been established by 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, 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 18^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