Majid Abdul v. Torture Claims Appeal Board

HCAL 1925/2020

[2021] HKCFI 439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1925 of 2020

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 31-year-old national of Pakistan who entered Hong Kong illegally on 6 October 2015 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 maternal uncle over a land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Waisa Village, Hazro Tehsil, Attock District, Punjab, Pakistan. After leaving school he continued to live with his parents in their family home which his mother inherited from the grandfather, and worked as a taxi driver in his home district.

3.In 2014 his mother transferred the family home to the Applicant against the wishes of his maternal uncle who believed that he should be entitled to the property, and while his uncle was then residing in United Kingdom but would travel to Pakistan from time to time for his business, his uncle had demanded the Applicant to let him have the property or else he would have him killed, to which the Applicant refused and just ignored the threats. 

4.However, after one occasion in 2015 when the Applicant was attacked by two unknown men outside his house and was subsequently taken to the hospital for medical treatments, and when he subsequently received a message form his uncle who admitted that he was behind the attack and warned the Applicant that next time he would have him killed unless he handed over the property to him. The Applicant refused but as he was fearful for his life, he therefore in March 2015 fled to Malaysia where he found a job in the factory, but later when he was approached by two unknown men on the street whom he suspected were sent by his uncle to kill him, he managed to escape from the scene and subsequently in September 2015 departed Malaysia for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 31 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 12 September 2018 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 land 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 (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 204 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 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 uncle to locate him.

7.On 26 September 2018 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 1 April 2020 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 14 September 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s claim of his dispute with his maternal uncle over his land in his home district but found no evidence of official involvement that state/police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located by his uncle or his men that his claim for non-refoulement protection failed on all applicable grounds.

9.On 25 September 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but in his supporting affirmation of the same date he merely repeated his claim that he would be killed by his uncle if returned to his home country without putting forward any proper grounds for his intended challenge. As such and in the absence of any error of law or irrationality 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 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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.     

12.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.

13.Furthermore, on 14 January 2021 the Applicant filed an affirmation requesting to withdraw his leave application, and on 29 January 2021 he wrote to clarify that he has obtained his Hong Kong identity card and therefore wants to close his case.  

14.Accordingly, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation to close his case, I therefore dismiss his leave application.

Dated the 22^nd day of February 2021.

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