Rana Imran v. Torture Claims Appeal Board

HCAL 177/2020

[2021] HKCFI 3312

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 177 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 47-year-old national of Pakistan who entered Hong Kong illegally on 16 July 2007 and was arrested by police on 18 April 2008.  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 his brother-in-law over some personal disputes.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sharif Park, Lahore, Pakistan.  After leaving school he worked as a salesman and in 1997 started his own business in Lahore, got married and raised a family with 4 children.

3.In 2005 his wife’s younger sister married her husband Ansar who however became abusive to her shortly thereafter, and when the Applicant tried to intervene, Ansar reacted badly and started to make threats against the Applicant, and had even kidnapped the Applicant’s brother-in-laws, for which he was subsequently arrested by police and sent to prison, but after his discharge from prison, Ansar continued to make threats against the Applicant, and to avoid such threats the Applicant in July 2007 departed Pakistan for China, and from there he later sneaked into Hong Kong, 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 23 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 19 June 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his brother-in-law upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that after all these years it is doubtful that Ansar would still have any adverse interest in the Applicant, that in any event it was a private personal 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 196 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 part of Pakistan away from his home district in large cities such as Faisalabad where it would be difficult if not impossible for Ansar to locate him.

6.On 2 July 2015 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 18 May 2016 before the Board during which he confirmed his case as stated in the hearing bundle but elected not to give any further evidence or to answer any questions from the Adjudicator for the Board. On 13 October 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board accepted the Applicant’s claim of fear of harm from his brother-in-law which arose from their personal dispute, but found in the absence of any 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 area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds. 

8.Meanwhile on 15 December 2016 the Director on his own initiative invited the Applicant 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 30 December 2016 found the Applicant to have failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan and accordingly also dismissed his BOR 2 Claim.

9.On 17 January 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, for which the Board did not find it necessary to hold any further oral hearing for his appeal and proceeded to deal with it in the absence of the Applicant and on paper, and on 13 December 2019 it dismissed the Applicant’s appeal upon finding that his case was irrelevant to any potential claim under BOR 2 Risk and that there was no real or personal risk of him being arbitrarily deprived of his life if refouled to Pakistan in violation of the BOR 2 ground, and also confirmed the further decision of the Director.

10.On 16 January 2020 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, 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 details or particulars as to how it did so, nor did he put forth any other proper ground for his intended challenge.

11.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 of the Board’s finding that his claim was irrelevant to any potential claim under the BOR 2 ground, and given the scope and threshold of BOR 2 Risk, as correctly found by the Board, the Applicant’s claim even on the basis of his own case simply does not engage the BOR 2 ground.

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 fact is that it has been established by both the Director and the Board in their respective earlier decisions 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.     

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.Furthermore, the Applicant recently on 2 September 2021 filed an affirmation requesting to “close” his leave application as he wants to return to his home country.   

16.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 given his latest confirmation of his wish to return to his home country, I accede to his request and accordingly dismiss his leave application.

Dated the 5^th day of November 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