Hussain Sajjad v. Torture Claims Appeal Board

HCAL 951/2018

[2021] HKCFI 734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 951 of 2018

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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 55-year-old national of Pakistan who last entered Hong Kong illegally in May 2015 and surrendered to the Immigration Department on 2 September 2015 and raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed for being caught in the election disputes between two rival politicians in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Daryah Badar, Baqam, Kotil Loharan, Sialkot, Pakistan. After leaving school, he got married, and in 1985 assisted a politician Chudhary in his local election campaign against his rival candidate Salman during which there were violent clashes between the supporters of the two rival politicians which caused the Applicant’s family to advise him to leave town to seek work elsewhere, which he did by moving to Sialkot, during which he heard that there were more violent clashes between the Chudhary and Salman which eventually led to the latter being killed by one of Chudhary’s supporters Saleem, but after Saleem was subsequently acquitted by the court, Salman’s  son Rehan swore to take revenge against Saleem and his associates.

3.Sometime in September 2000 when the Applicant returned to his home district and greeted his old friends including Saleem during which he was seen by Rehan, and afterwards he was warned by his family that Rehan might think that he was part of Saleem’s gang and would then go after him as part of his revenge action against Saleem.

4.One afternoon in late October 2000 while he was on his way home on a motorbike, he ran into Rehan and his gang who started shooting at him with their guns but the Applicant managed to escape unharmed and went home, and when afterwards the police failed to take any action due to their doubting of his words, the Applicant decided to depart Pakistan to save his life, which he did on 31 October 2000 when he travelled to Hong Kong where he subsequently overstayed until 1 August 2007 when he surrendered to the Immigration Department and raised a torture claim, and after his claim was rejected, he was then repatriated to Pakistan in March 2012.

5.Upon his return to Pakistan, the Applicant one day in July 2012 ran into Rehan and his gang who then beat him badly and threw him into a canal, but he managed to survive and went into hiding, and in April 2013 he departed Pakistan for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection on the same basis as before, and for which he was granted legal representation from the Duty Lawyer Service (“DLS”).

6.However, by a letter dated 1 March 2017 from DLS, the Applicant withdrew his non-refoulement claim which was accepted by the Immigration Department, but on 24 August 2017 he requested to re-open his claim and provided evidence of the threats from Rehan and his gang as mentioned above in support of his request.       

7.By a Notice of Decision dated 2 November 2017 the Director of Immigration (“Director”) refused the Applicant’s request to re-open his non-refoulement claim upon finding there had been no change of circumstances that could not reasonably have been foreseen by him when he earlier withdrew his claim, nor was there any change of circumstances when taken together with the materials previously submitted that could increase the prospect of success of his claim, or any special circumstances that would make it unjust not to re-open his non-refoulement claim.

8.In his decision the Director did also consider that in any event in the absence of any evidence of any state or official involvement in the Applicant’s claimed threats from Rehan and his gang that state or police protection would be available to him upon his return to Pakistan if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are also available in Pakistan with a large population of 205 million people spread across a vast territory of more than 770,000 square kilometers that it would not be unduly harsh for him to move to other part of Pakistan away from his home district where it would be difficult if not impossible for Rehan or his gang to locate him that it was not satisfied that when taken together with the material previously submitted for his claim that could increase the prospect of success of his claim.

9.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 23 February 2018 and 20 March 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 18 May 2018 his appeal was dismissed by the Board on all the applicable grounds.

10.In its decision the Board agreed that the Applicant should be allowed to re-open his non-refoulement claim, and proceeded to consider his such claim on all the applicable grounds other than torture risk including risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), risk of his absolute or non-derogable rights under HKBOR being violated including right to life under Article 2 (“BOR 2 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”).

11.In its consideration of the Applicant’s claim, the Board however found inconsistencies and exaggerations in the account between those given by him earlier to the Director and those given during his appeal hearing that it doubted his claimed fear of threats from Rehan and his gang as unreliable, and that in any event with state/police protection available to him upon his return to Pakistan as well as with reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located by Rehan or his gang that his claim for non-refoulement protection failed on all the applicable grounds.       

12.On 28 May 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 repeated his claim that his life would be in danger in his home country without putting forward any proper ground for his intended challenge. As such 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 for his intended challenge.

13.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.

14.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.     

15.In the premises and having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in its process or its decision, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the Applicant’s claim.

16.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 19^th day of March 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