Ahmed Waqas v. Torture Claims Appeal Board

HCAL 318/2019

[2022] HKCFI 1096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 318 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 35-year-old national of Pakistan who entered Hong Kong illegally on 19 November 2007 and was arrested by police on 21 November 2007.  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 a fellow farmer 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 Momin Pur, District Attock, Punjab, Pakistan.  After leaving school he farmed on a farmland inherited from his father in his home village to make his living.

3.In about 2003 a farmer named Shahzad from another district started to come with his men onto the Applicant’s farmland to dispute the Applicant’s title in the land, claiming himself to be the true owner, which invariably led to fights with the Applicant and his brothers, but when his elder brother was killed in the fight on one such occasion in 2004, the Applicant became fearful for his life and fled to other towns to take shelter amongst his relatives, and in November 2007 he departed Pakistan 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 Torture Claim Form (“TCF”) on 31 December 2013 and a Supplementary Claim Form (“SCF”) on 6 September 2014, and attended screening interviews before the Immigration Department with legal representation form the Duty Lawyer Service (“DLS”).                

4.By a Notice of Decision dated 19 December 2014 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 Shahzad and his men upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was in any event a private land dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan 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 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 Karachi where it would be difficult if not impossible for Shahzad to locate him.

6.On 29 December 2014 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 21 April 2015 before the Board during which he gave further evidence and also answered questions raised of his claim by the Adjudicator for the Board. On 28 October 2015 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 a land dispute with Shahzad but found that it was a private land dispute between them 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 area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all the applicable grounds.       

8.On 25 January 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 10 February 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.

9.On 20 February 2017 the Applicant again lodged an appeal the Board against this further decision of the Director, for which the Board did not hold any further oral hearing and proceeded to deal with the appeal in the absence of the Applicant and on paper, and on 18 January 2019 it dismissed the Applicant’s appeal regarding his BOR 2 Claim and confirmed the Director’s further decision upon finding that the Applicant had failed to put forward any additional facts for his BOR 2 Claim or to establish any substantial risk of being deprived of his life by Shahzad in violation of BOR 2 upon his return to Pakistan.

10.On 4 February 2019 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 or in his supporting affirmation of the same date in which he merely repeated his claim as before that his life is not safe in his home country, 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 her process before the Board or in either of its decisions 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 even based on his own case at the highest, his claim simply does not engage the BOR 2 ground, and that in any event it has been established by both the Director and the Board in their 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 under any of the applicable grounds: 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 under all the applicable grounds.

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 14^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