Hussain Jamal v. Torture Claims Appeal Board

HCAL 797/2018

[2020] HKCFI 2375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 797 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 34-year-old national of Pakistan who entered Hong Kong illegally on 1 January 2014 and was arrested by police on 12 April 2014.  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 over a land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Mohallah Mughal Pura, Gujrat, Pakistan where his grandfather had passed his land in the home village to his father and paternal uncle in equal shares, but the latter had always coveted his father’s share which had led to many quarrels and conflicts between them.

3.During one such dispute in 2011 when his father indicated his intention to transfer his land to the Applicant, his uncle threatened that he would kill the Applicant if he did, and slapped the Applicant on the face several times before he left angrily.

4.After the incident the Applicant became fearful for his safety and fled to a neighboring town to take shelter in his friend’s place before moving on to Lahore, but as he heard that his uncle had sent his men looking for him everywhere, he felt it was no longer safe to remain in Pakistan, and so on 15 November 2013 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 6 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 29 March 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 his uncle upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that it was a private family dispute over land 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 (“COI”) 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 adult with working experience to move to other part of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for his uncle to locate him.

7.On 6 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 20 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 12 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found flaws and unreliability in the Applicant’s evidence as to his claim of land dispute between his father and his uncle that had led to threats against him, that the alleged ill-treatment by his uncle did not amount to the minimum degree of severity under the applicable grounds, and that there was no evidence of his uncle pursuing after him or of any intention to harm or kill him that his claim for non-refoulement protection failed on all applicable grounds.

9.On 7 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) irrationality in the Board’s failure to consider the concept of state acquiescence;

(2) procedural impropriety in making insufficient inquiry;

(3) failure to provide adequate reasons as to its decision made;

(4) procedural impropriety/unfairness in failing to investigate into the Country of Origin Information of Pakistan;

(5) irrationality in failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6) irrationality in failure to consider a consistent system of human rights violations;

(7) irrationality in failure to consider state protection exists in Pakistan;

(8) irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(9) procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(10) procedural impropriety in applying the incorrect standard of proof;

(11) no reasonable basis for rejecting the credibility of his claim;

(12) failure to consider the extended form of state acquiescence;

(13) failure to fully consider the COI reports in assessing risk to the Applicant;

(14) irregularity of the decision-maker being a different person than the interviewing officer; and

(15) no proper basis for consideration of internal relocation.  

10.All these however appear to me just some standard pro forma grounds commonly used in this type of application but wholly irrelevant to the Applicant’s case, or are just his broad and vague assertions containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or why was the concept of state acquiescence relevant to his case, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or how did the Board fail to apply the correct standard of proof, while the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he would be prejudiced by his appeal being heard by a different decision-maker from the immigrant officer.  As such I do not find any of them reasonably arguable 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 33 – 83 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.  

13.Furthermore, 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.     

14.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.

15.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 22^nd 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