Mahmood Sajid v. Torture Claims Appeal Board

HCAL 350/2019

[2022] HKCFI 998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 350 OF 2019

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 / 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 27-year-old national of Pakistan who entered Hong Kong illegally on 2 February 2016 and was arrested by police on 25 February 2016. 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 girlfriend’s family who objected to their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dongi Dakhari, Pakistan where his father used to have some personal dispute with the Applicant’s maternal uncle and hence the two families were not on good terms.

3.However, in 2011 the Applicant formed a relationship with his uncle’s daughter which they kept as a secret from their families due to their past enmity, but somehow his uncle who was then residing in Saudi Arabia discovered about it and telephoned the Applicant to demand that he stopped seeing his daughter or else he would have him killed, of which the Applicant just ignored and carried on his relationship with his uncle’s daughter.

4.In 2013 his uncle passed away in Saudi Arabia, but later in 2014 the Applicant heard that his uncle had before his death told his son to kill the Applicant, and when his uncle’s son started telling everybody that he would do so as told by his father, the Applicant became fearful for his life and fled to Gujrat City to take shelter in a friend’s place.   

5.However, in October 2015 when he noticed that his uncle’s son had been following him around, the Applicant felt it was no longer safe to remain in Pakistan, and in January 2016 he departed 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 21 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 26 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”).

7.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’s son upon his return to Pakistan as low due to the absence of any past ill-treatment from him, that it was in any event 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 204 million people spread across a vast territory of more than 771,000 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 where it would be difficult if not impossible for his uncle’s son to locate him.

8.On 9 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 13 September 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 19 November 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board accepted the Applicant’s account of objection from his girlfriend’s family against their relationship but found no reliable evidence of any real intention of his uncle’s son to seriously harm or kill the Applicant and hence was not satisfied that there would be any real or substantial risk or any real chance that he would face harm of any kind upon his return to Pakistan, and that in any event it was some private personal dispute between two families without any official involvement that state/police protection would be available to the Applicant 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.      

10.On 8 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, and in his supporting affirmation of the same date he stated that he is not satisfied with the decision but without putting forward any proper grounds 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.

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 7^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