Hussain Babar v. Torture Claims Appeal Board

HCAL 616/2019

[2022] HKCFI 2306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 616 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 38-year-old national of Pakistan who entered Hong Kong illegally on 23 January 2008 and was arrested by the police on 31 March 2008. 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 certain local supporters of the political party Jamaat-e-Islami (“JEI”) for refusing to join their party and/or by the police over various false charges raised by those JEI supporters against him. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Mirpur City, Azad Jammu & Kashmir, Pakistan where starting in 2003 he was constantly approached by certain local JEI supporters to join their party after his brother refused to do so, but when the Applicant also repeatedly refused their invitation, they would make threats against him and also raised false claims against him to the police such as possession of firearms that he would be arrested and interrogated by the local police and detained for days before his release, and after an occasion when he was shot at and injured by some unknown men whom he suspected were the JEI people, and on another occasion he was abducted by those JEI who beat and tortured him for several days before releasing him.

3.As a result the Applicant became fearful for his life, and to avoid further threats from those JEI supporters and the police’s harassments, and after hearing that his brother had been killed by those JEI people, the Applicant fled to Islamabad, Lahore and then Karachi before eventually departing Pakistan on 14 January 2008 for China, and from there he later sneaked into Hong Kong, and upon his subsequent 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 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

4.By a Notice of Decision dated 8 July 2015 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 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 those local JEI supporters or the local police upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that there is still any interest of the police in the Applicant given that he had been able to go about his life without any restrains and to leave the country without any problem, while there is also no evidence or reason why the JEI people would still have any adverse interest in the Applicant after all those years since he left the country, that in the absence of any official involvement that state protection would be available to the Applicant if needed 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 196 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 Lahore where he had stayed before without incidents and where it would be difficult if not impossible for those local JEI supporters to locate him.

6.On 21 July 2015 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 June 2016 before the Board during which he gave oral evidence and also answered questions raised of his claim by the Adjudicator for the Board. On 17 February 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found the Applicant’s evidence as to his claim of threats and assaults by the local JEI supporters or the harassments and ill-treatments by the police vague, lack of details, inconsistent and speculative that it doubted the credibility of his claim of fear of harm from them that caused him to flee from his country for Hong Kong, which was further undermined by his failure to raise his claim upon his arrival until later and only after his arrest by the police, and that in any event in the absence of any official involvement that state protection would be available to the Applicant if needed 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 applicable grounds.      

8.Meanwhile on 31 March 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 upon considering further submissions from his lawyer from DLS, the Director by a Notice of Further Decision dated 14 August 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 25 August 2017  the Applicant again lodged an appeal to 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 14 February 2019 it dismissed the Applicant’s appeal regarding his BOR 2 Claim upon finding that the Applicant’s claim as stated did not engage the BOR 2 ground and that he had failed to establish a substantial risk of being deprived of his life in violation of BOR 2 upon his return to Pakistan in the absence of any new basis or evidence to support his claim.

10.On 5 March 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 to which he just attached a copy of the decision and stated that he is not satisfied with it as his life is still in danger in his home country but without putting forth 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, on the factual basis of his own case that his claim simply did not engage the BOR 2 ground in its limited scope, and that it has also been correctly established by both the Director and the Board in their earlier decisions that the risk of harm in his claim if true 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.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 on all applicable grounds.

14.Furthermore, the Applicant recently on 27 June 2022 filed an affirmation requesting to withdraw his application as he wants to leave Hong Kong for Canada as soon as possible, and for which he has already been granted a visa to do so.

15.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 of his wish to leave Hong Kong, I accordingly dismiss his leave application.

Dated the 27^th day of July 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