Munawar Hussain v. Torture Claims Appeal Board

HCAL 1071/2018

[2021] HKCFI 1449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1071 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 47-year-old national of Pakistan who arrived in Hong Kong on 3 June 2003 with permission to stay as a visitor up to 17 June 2003 when he did not depart and instead overstayed until he was arrested by the police on 12 November 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his uncle and sons over a land dispute in his home district, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis, He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Khohar, Tehsil Sarai Alamgir, District Gujrat, Punjab, Pakistan. After leaving school he assisted his father in farming on his father’s land in his home village before going off to find other jobs in Lahore for several years before returning to his home village.

3.After his father passed away in 2002, his father’s farmland was inherited by the Applicant and his two brothers, and which the Applicant with his brothers’ permission later in 2003 entered into an agreement to sell to a fellow villager, but shortly after hearing about it his uncle whose farmland was adjacent to theirs came to demand the Applicant to sell the land to him instead, and when the Applicant refused because of his agreement to sell to the other villager, his uncle threatened that he should reconsider his demand or else he would be killed.

4.After the threats the Applicant made a report to the police, but about a month later his uncle and his three sons with some other men came to the Applicant’s home and fired their guns at the Applicant for several minutes but the Applicant managed to escape unharmed.     

5.As he became fearful for his life after the shooting, the Applicant on 3 June 2003 departed Pakistan for Hong Kong where he overstayed until his arrest by the police in November 2009 when he then raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 1 June 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.While being released on recognizance pending the determination of his claim, the Applicant was arrested by the police again on 31 October 2011 for undertaking unauthorized employment for which he was subsequently bound over for 12 months.      

7.By a Notice of Decision dated 27 June 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the other applicable grounds except torture risk including 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”).

8.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle’s sons upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that so many years have passed after the Applicant had sold the land and with his uncle having died in 2016 it is not accepted that his uncle’s sons would still have any adverse interest in him, that in any event it was a private family dispute over land between the Applicant and his cousins 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”) shows 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 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 parts of Pakistan away from his home district in large cities such as Islamabad or Karachi where it would be difficult if not impossible for his cousins to locate him.

9.On 10 July 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 15 February 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 16 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found such inconsistencies, implausibility and non-persuasive in the Applicant’s evidence of past events in Pakistan that it rejected his claim of fear of risk of harm from his uncle’s sons over some farmland allegedly sold many years ago that the Applicant had fabricated his claim so as to create a basis for non-refoulement protection that it concluded that his claim for non-refoulement protection failed on all applicable grounds.     

11.On 11 June 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 just stated that the decision disregarded his dangerous situation without providing any particulars or elaboration how it did so, nor did he put forth any other proper ground for his intended challenge at the hearing of his application.

12.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.

13.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 31 – 45 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.  

14.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 if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.     

15.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.

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 21^st day of May 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