Ditta Allah v. Torture Claims Appeal Board

HCAL 1948/2020

[2021] HKCFI 1918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1948 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 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 29-year-old national of Pakistan who arrived in Hong Kong on 5 February 2008 on a dependent visa sponsored by his father, but upon his father’s death in 2011 and the expiration of his dependent visa on 7 February 2012, he did not depart and instead overstayed in Hong Kong, and on 21 December 2012 he was arrested by police for his involvement in a robbery case for which he was subsequently convicted of handling stolen goods and was sentenced to prison for 2 years, and upon his discharge from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his uncle over a land dispute in his home village. He was subsequently released on his recognizance pending determination of his claim.

2.The Applicant was born and raised in Chachia Town, Mirpur, Azad Kashmir, Pakistan. After leaving school he came to Hong Kong in 2008 on his dependent visa sponsored by his father and worked as a delivery worker.

3.In 2011 his father returned to their home district in Chachia Town in Pakistan and transferred his land to the Applicant and placed the title documents with the Applicant’s mother in their home district before his father’s death later in the same year.

4.However, the Applicant’s paternal uncle wanted the land for himself and upon the death of the Applicant’s father demanded that the land be transferred to him, and when the Applicant’s mother refused to hand over the title documents, his uncle threatened to kill the Applicant upon his return to Pakistan, and when the Applicant was so informed by his mother, he was afraid to depart Hong Kong upon the termination of his dependent visa and therefore overstayed in Hong Kong, and upon his subsequent release from prison and the subsequent issue of the deportation order against him by the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 April 2020 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.Whilst being released on recognizance pending determination of his claim, the Applicant was again arrested by police on 30 April 2019 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months, and upon his discharge he has since been detained at the Castle Peak Bay Immigration Centre (“CIC”) pending deportation.

6.By a Notice of Decision dated 14 May 2020 the Director of Immigration (“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”).

7.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 upon his return to as low due to the absence of any past ill-treatment from him, that it was a private family dispute between his family and his uncle 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 233 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 parts of Pakistan away from his home district in large cities such as Islamabad or Sukkur where it would be difficult if not impossible for his uncle to locate him.

8.On 8 June 2020 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 2 September 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.

9.In its decision the Board found in the absence of any evidence from the Applicant such as the title documents of the land which he claimed to have been transferred by his father to him and placed in his mother’s care to corroborate his bare assertions of threats of harm from his uncle that it doubted the credibility of his claim that he would be at real risk of being harmed or killed by his uncle if he returned to Pakistan, and 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 to move safely to other areas away from his home district without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.   

10.On 28 September 2020 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 or in his supporting affirmation of the same date in which he merely stated that his life would still be in danger in his home country but without putting forward any proper grounds for his intended challenge, nor did he at the hearing of his application other than submitting a 2-page statement in which he complained of being detained by the Immigration Department without reasons and that it was unfair and unreasonable for the Director or the Board not to accept his claim as true and genuine but without any details or particulars or elaborations how they were so, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis 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 50 - 54 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.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.

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 5^th day of July 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