Mehmood Sajid v. Torture Claims Appeal Board

HCAL 382/2019

[2022] HKCFI 988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 382 of 2019

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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of Pakistan who last entered Hong Kong illegally on 20 January 2015 and was arrested by police on 27 January 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 uncle and sons over a land dispute 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 Retla Mandi, Mohallah Ashraf Pura, Hazro, District Attock, Punjab, Pakistan. After leaving school he worked on his family’s farmland which he stood to inherit from his father, but in 2011 his paternal uncle who also lived in the same village started to dispute the Applicant’s entitlement to the land by insisting that he and his family were in fact the rightful owners, and one day in May 2011 his uncle and his sons came onto the land to demand the Applicant to leave, and when the Applicant refused, they proceeded to attack him with wooden sticks that he suffered cuts and bruises all over his body and had to be taken to the hospital for treatments.

3.Upon his discharge from hospital the Applicant made a report of the assault to the police, but on the same evening his uncle and sons came to his home to accuse him of taking the matter to the police, and proceeded to attack him again during which the Applicant’s brother who was trying to intervene was shot by them and later died from his injury.       

4.Fearing for his own life, the Applicant then fled from his home to hide in a friend’s place, and then moved to Islamabad in June 2011 where he later departed for China, and from there he then sneaked into Hong Kong and raised his torture claim which was subsequently rejected by the Immigration Department, and whereupon he was repatriated to Pakistan in July 2012.

5.Upon returning to his home village he was told by his mother that his uncle had left for Saudi Arabia on business, and hence the Applicant was able to resume farming on his family’s farmland without incidents.

6.However, in 2014 his uncle returned to Pakistan, and soon in June 2014 he came with his sons to again demand the Applicant to leave the land, and threatened to kill him next time if he still refused to do so. As a result of the death threats, the Applicant on 23 June 2014 departed Pakistan again for China, and from there he later again sneaked into Hong Kong on 20 January 2015, and upon his arrest by the police he then sought non-refoulement protection on the same basis as before, and for which he completed a Supplementary Claim Form (“SCF”) on 25 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 19 May 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

8.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 and sons upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was a private family land dispute between the Applicant 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”) 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 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 Islamabad where it would be difficult if not impossible for his uncle to locate him.

9.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the decision of the Director, and for which he attended an oral hearing on 24 April 2018 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board as well as with submissions made by his lawyer on his behalf. On 11 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found numerous inconsistencies and discrepancies in the Applicant’s evidence regarding his alleged land dispute with his uncle that it did not regard him as a witness of truth or that his claims were credible that it did not accept that he had been embroiled in any dispute with his uncle and sons over land owned by his father in 2011 or he had been threatened or assaulted by them to leave the land or that as a result he fled his home and Pakistan for Hong Kong as alleged, and concluded that his claim for non-refoulement protection failed on all applicable grounds.    

11.On 11 February 2019 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 to which he just attached copies of the decisions of the Board and the Director but without putting forward any 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.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 60 – 84 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.  

14.Furthermore, the fact is that it has been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.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.

16.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 6^th day of April 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