Ali Amanat v. Torture Claims Appeal Board and Another

HCAL 2379/2018

[2022] HKCFI 878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2379 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 43-year-old national of Pakistan who entered Hong Kong illegally on 16 May 2015 and was arrested by police on 18 May 2015. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle over a land dispute between his uncle and his family in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kher Ratali, Azad Kashmir, Pakistan. After leaving school he worked in various labor jobs in his home village where his father and his paternal uncle inherited a piece of land from his grandfather, but as his uncle considered that his father’s share of land more valuable than his, his uncle proposed that they should exchange their land, but when his father on the Applicant’s advice rejected his uncle’s proposal, his uncle became furious with the Applicant and made threats to kill him.     

3.After one occasion in 2010 when he was assaulted by his uncle and sons, and when the police refused to take any action as his uncle had political affiliation with the ruling the party, the Applicant became fearful for his life, and therefore fled from his home village to Rawalpindi and then to Lahore where he found a job and stayed for 10 months without incidents, but later when he heard that his uncle and sons were looking for him everywhere, he therefore departed Pakistan in July 2014 for China, and from there he later sneaked into Hong Kong, and after 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 22 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 22 January 2018 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”).

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 uncle upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from his uncle, that there was no evidence of any real intention of his uncle to seriously harm or kill him, that in any event it was a private family dispute over land 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 201 million people spread across a vast territory of more than 770,000 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 Lahore or Islamabad where it would be difficult if not impossible for his uncle to locate him.

6.On 2 February 2018 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 31 August 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 18 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found inconsistencies and discrepancies in the Applicant’s claim of land dispute between his family and his uncle that it suspected that he had exaggerated his fear of harm from his uncle so as to advance a claim for non-refoulement protection, that in any event in the absence of any official involvement that state/police protection would be available to the Applicant upon his return to Pakistan as a well as reasonable internal relocation for him to move safely to other area 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.    

8.On 29 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge which may be summarized as follows:

(1)   that the Director and the Adjudicator determined his case wrongly and failed to address the issues of his claim properly and instead came up with an assessment more or less of a template basis;

(2)   that the Director wrongly assessed the Applicant’s risk of harm from his enemies upon his return to Pakistan as low due to availability of state protection despite the fact that the Applicant had been assaulted not once but several times, and that police protection was not available to him despite having made a FIR against his enemies that no action had been taken against them;

(3)   that in terms of COI both the Director and the Board had wrongfully exercised their case management power by putting undue weight on reported availability of state protection when the same COI was quoted both for and against the Applicant’s assertion;

(4)   that the Director rejected his claim simply for the sake of rejecting all non-refoulement claims and hence adopted a very uniformed approach in all of the conclusions;

(5)   that the Board failed to apply high standards of fairness in assessing his claim and failed to give adequate reasons for its decision;

(6)   that the Board failed to consider all the documentary evidence provided by the Applicant that it was unfair, unreasonable and illogical for the Board to still reject the credibility of the Applicant’s claims that they did not occur in Pakistan;

(7)   that the Board was illogical, unreasonable and unfair for completely rejecting the credibility of the Applicant’s claims without any explanation as to what assertions that the Applicant was to have to explain being an example of the Board providing inadequate reasons for rejecting his claim and not dealing with the facts in a proper way or failing to take into account relevant matters in the Applicant’s claims; and

(8)   that the Director quoted various COI that were first used to support the Applicant’s allegations as to state protection then to go against his allegations that the situation has improved in Pakistan without any explanation in terms of how the balancing exercise worked and what tests did the Director apply in concluding that the particular sections of the COI outweigh the others.

9.These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Board had erred in their decisions, or in what way did they fail to apply high standards of fairness in their assessment of his claim, or how did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge, 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, nor do I find any basis for his intended application either.

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 decisions 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 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.     

12.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.

13.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 25^th day of March 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