Javed Muhammad Faisal v. Torture Claims Appeal Board and Another

HCAL 3220/2019

[2022] HKCFI 1870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3220 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 26-year-old national of Pakistan who entered Hong Kong illegally on 10 October 2016 and surrendered to the Immigration Department some 8 months later on 27 June 2017 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a fellow villager who threatened to silence him for having witnessed a murder committed by that villager in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Chak, Tehsil, District Sumandari, Faisalabad, Pakistan. After leaving school he worked as a farmer for a local landowner in his home village.

3.One day in March 2016, while he was working on his employer’s farmland, the cousin of his employer came onto the land to quarrel with his employer over their personal dispute which deteriorated into a fight involving also his employer’s son who was killed in the fight.

4.After the incident the Applicant was asked by his employer to be a witness to the killing, but before he was due to give evidence in court, he was threatened by his employer’s cousin that he would be killed if he were to do so, and on the day when he was on his way to the court, he was attacked by several men whom he suspected were sent by his employer’s cousin that he was badly injured and had to seek medical treatment.

5.As a result he was unable to attend court to give evidence, but as he was still fearful for his life, he therefore took shelter in his uncle’s place away from his home village, and on 23 April 2016 he departed Pakistan 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 30 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 8 August 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 perceived enemies upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that the fact that he departed from the country without giving any evidence in court against his enemies that no matter what was the outcome of the murder trial that there is no reason for there to be still any adverse interest in him from anyone after all these years, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to Pakistan, 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 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man 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 enemies to locate him.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 3 September 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 October 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found from the Applicant’s evidence that since he had never been asked to give any witness statement to the police and also never gave any evidence in court against anyone before his departure from Pakistan that it is not accepted that there would still be any adverse interest in him from anyone in his home country after all these years or that he will face any real risk of any kind from anyone upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

10.On 29 October 2019 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 the following grounds for his intended challenge:

(1)  that the Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim that their decisions were not reasonable or fair as required by the Wednesbury test in failing to recognize his right to life must be protected by criminal law from extra-judicial killings which he may face if deported to his home country;

(2)  that the Adjudicator failed to give him sufficient time or opportunity to arrange relevant evidence for his claim and appeal;

(3)  that Director failed to appreciate or give proper weight or importance to the presence of state acquiescence in his case which led to an unfair outcome of rejecting his non-refoulement claim;

(4)  that the Director failed to take account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide protection for its citizens under the duty of due diligence;

(5)  that the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise which was a clear case of unfair attitude shown by the Director which in itself is sufficient to render his decision void; and

(6)  that the Director failed to apply high standards of fairness in failing to take account of the fact that corruption and incompetency of the administration in the Applicant’s home country is a very serious problem of which various human rights organizations have compiled reports which stated testament to the Applicant’s assertions that the decision should be considered as unreasonable in the scope of public law.

11.These are however all just broad and vague assertions of the Applicant containing several 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 Adjudicator had erred in their decisions, or what relevancy would state acquiescence or extra-judicial killings or torture be to the Applicant’s case, or in what way did the Adjudicator fail to apply high standards of fairness in considering the relevant COI or in assessing his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. 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 of these grounds of his reasonably arguable 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 fact is that it has also been correctly established by the Director in his decision 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, 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.

14.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.

15.Furthermore, the Applicant recently by an affirmation filed on 5 May 2022 and a letter dated 31 May 2022 has requested to withdraw his application as there is no longer any threat against him from anyone in Pakistan that he wants to return to his home country as soon as possible.

16.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 21^st day of June 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