Asad Hussain v. Torture Claims Appeal Board

HCAL 1047/2018

[2021] HKCFI 1533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1047 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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of Pakistan who arrived in Hong Kong sometime in February 2011 as a visitor but he subsequently overstayed and was arrested by the police on 4 March 2011. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by local supporters of the rival political party Muslim Conference (Malik Nawaz) Group (“MCMNG”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kurti, Tehsil, District Kohi Azad Kashmir, Pakistan. After leaving school, he worked as a driver in his home district, and supported the political party Muslim Conference (N) Group (“MCNG”) by regularly attending its local meetings and rallies.

3.In 2010 during the general election in Azad Kashmir, the Applicant and his fellow MCNG came into violent conflicts with the local MCMNG supporters which frequently led to mass brawls between the two sides, and after a particularly violent confrontation when the Applicant was struck by wooden sticks and suffered injuries which required medical treatment at the local hospital, he became fearful for his life, and fled from his home village to take shelter in a friend’s place in Rawalpindi and later to Islamabad, and from there he departed Pakistan in February 2011 for Hong Kong where he overstayed, 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 (“NCF”) on 12 May 2015 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 23 September 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

5.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 upon his return to as low due to the absence of or low intensity and frequency of past ill-treatment from, that in the absence of 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 199 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 such as Islamabad where it would be difficult if not impossible for MCMNG supporters to locate him.

6.By a Notice of Further Decision dated 28 December 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

7.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 6 October 2015, and for which he attended an oral hearing on 13 February 2017 before the Board during which he declined to give any further evidence other than to confirm the information provided for his claim as contained in the hearing bundle. On 5 June 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board found the information provided by the Applicant in material aspects of his case incredible and unreliable and doubted the credibility of his claim, but that in any event in the absence of any state or official involvement that state/police protection would be available to him 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 that his claim for non-refoulement protection failed on all applicable grounds.   

9.On 8 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 merely stated that he rejects the decision as it disregarded his dangerous situation but without providing any particulars or elaboration how it did so or any further or proper ground for his intended challenge, nor did he request any oral hearing for his application. 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 the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.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, the Applicant on 23 March 2021 wrote to the court requesting to withdraw his application because he has been given his “HKID”.

14.In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of the Applicant’s latest request to withdraw his application, I accede to his request and accordingly dismiss his leave application.

Dated the 31^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