Khan Bakhtiar v. Torture Claims Appeal Board and Another

HCAL 278/2019

[2022] HKCFI 315

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 278 of 2019

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 / the Applicant being absent 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 38-year-old national of Pakistan who entered Hong Kong illegally on 14 July 2015 and surrendered to the Immigration Department on 15 September 2015 and he later raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal cousin over a land dispute in their home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Wali, Tehsil Hazro, Attock, Pakistan.  After leaving school he assisted his father in farming on their family farmland.  One day in 2015 while he was working on the farmland, he had an argument with his paternal cousin over the share of their respective family in the land that they got into a fight but were subsequently restrained by other members of the two families.

3.After several more confrontations with his paternal cousin over the same dispute which again turned into a fight between them, the Applicant in June 2015 left his home village for Karachi, and then to Peshawar and Haiderabad before departing Pakistan on 8 July 2015 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 July 2016 but failed to attend the screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 31 August 2016 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 paternal cousin and his followers upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of his cousin to harm or kill him, that it was in any event a private family 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 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 part of Pakistan away from his home district in large cities such as Karachi, Peshawar or Haiderabad where he had stayed before without incidents and where it would be difficult if not impossible for his cousin to locate him.

6.On 28 July 2017 the Director on his own initiative invited the Applicant to submit any 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 16 August 2017 also rejected his BOR 2 Claim upon finding that he had 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 Risk being violated upon his return to Pakistan.

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 appeal which was filed on 12 September 2016, and for which he attended an oral hearing on 22 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 30 November 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board found the Applicant’s evidence as to his account of dispute with his cousin over the family farmland unsatisfactory due to his claimed lapse of memory and suspected that he had exaggerated his claimed fear of harm from his cousin given the fact that he was then not the owner of the land, and that in any event it was a private family dispute over the land in their home village without 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 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 29 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Further Decision of the Director dated 16 August 2017 as stated therein, but as that decision had clearly since been superseded by the Board’s Decision of 30 November 2018 and is no longer susceptible to judicial review: see AM v Director of Immigration [2014] 1 HKC 416, I shall therefore treat his application as one to challenge the Board’s decision, but in either case the Applicant has failed to put forth any proper ground for seeking relief in his Form or his supporting affirmation in which he merely repeated his claim as before that his problem in his home country has still not been resolved and that his life would still be at risk that he cannot return to Pakistan but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.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.

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

13.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.

14.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 26^th day of January 2022.

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