Raza Ali v. Torture Claims Appeal Board

HCAL 3462/2019

[2022] HKCFI 2900

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3462 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 31-year-old national of Pakistan who arrived in Hong Kong on 18 January 2013 as a visitor with permission to remain up to 25 January 2013 when he did not depart and instead overstayed, and was arrested by police some 6 months later on 3 July 2013.  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 2 cousins for refusing to sell them his land or to join their political party Pakistan Peoples Party (“PPP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sialkot District, Punjab, Pakistan. After leaving school he continued to live in his family home, and supported the political party Pakistan Muslim League (N) (“PML(N)”).

3.In 2008 his 2 cousins who also lived in the same district and who supported PPP approached him to join their party, but when he refused claiming to support PML(N) only, they were unhappy which led to a heated argument followed by a fist fight amongst the three of them until it was broken up by others, but since then there were bad blood between them.

4.The Applicant’s family owned a piece of land in Sambrial Town which happened to be adjacent to his cousins’ land, and after his father transferred it to the Applicant in 2008, his cousins started to demand that the Applicant should sell it to them cheaply, but to which the Applicant also refused.

5.One day in 2009 the Applicant ran into his cousins and friends on the street, and when he again refused their demand to sell his land to them, they together with their friends beat him with punches and kicks, and warned him that next time if he still refused their demand, they would kill him.

6.After another violent encounter with his cousins on the street when they attacked him with knives that he suffered a cut in his right knee but managed to escape without further serious injuries, the Applicant became fearful for his life, and so he fled from his home to take shelter in his aunt’s place, and when he heard that his cousins were looking for him everywhere, he departed Pakistan on 18 January 2013 for Hong Kong where he subsequently overstayed, and after 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 22 February 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.While being released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 11 September 2017 for theft for which he was subsequently convicted and sentenced to prison for 2 months.             

8.By a Notice of Decision dated 22 March 2019 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”).

9.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 cousins 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 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 208 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 the country away from his home district in large cities such as Islamabad where it would be difficult if not impossible for his cousins to locate him.

10.On 2 April 2019 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 6 November 2019 before the Board via video link from Lai Chi Kok Reception Centre where he was then being detained during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 November 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board accepted the Applicant’s claim of his disputes with his cousins over the sale of his land or their political issues but found no evidence of any real intention of his cousins to seriously harm or kill him or that they would still have any adverse interest in him after all these years since he left the country, and that in any event these were private family disputes between the three of them without any state or official involvement that state or 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 part of the country without any risk of being located by his cousins that his claim for non-refoulement protection failed on all applicable grounds.    

12.On 22 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for his intended challenge:

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

(2) That the Director failed to appreciate or give proper weight or importance to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim in failing to consider the fact that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(4) 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 enough weight to such evidence and instead ruled otherwise against the Applicant’s claim which was a clear case of unfair attitude shown by the Director which is in itself enough to render his decision void;

(5) That the Director failed attain high standard of fairness in failing to take into account of the fact that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as stated testament by various human rights organizations in their reports which supported the Applicant’s assertions that the decision should be considered unreasonable in the public law sense;

(6) That the Adjudicator was procedurally improper and unfair when assessing whether to accept the explanations provided by the Applicant and instead unreasonably required him to respond to questions that he was not in a position to offer any response;

(7) That the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s home country making the persecution effectively persecution by the state;

(8) That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which it ought to allow the appeal and its decision was thus irrational.  

13.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 in what way did the Director or the Adjudicator act in a procedurally unfair manner or was unreasonable or unfair in the public law sense, or why would state acquiescence or torture or extra-judicial killings be relevant to his claim when even on the factual basis of his own case that his claimed risk arose from his private disputes with his cousins without any state or official involvement that none of these grounds are relevant to his case or are reasonably arguable at all, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

14.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.

15.In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

16.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.

17.Furthermore, the Applicant recently on 24 August 2022 filed an affirmation requesting to withdraw his application as his problem has been resolved and that he wants to return to his home country as soon as possible.

18.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 he has no problem to return to his home country, I accordingly dismiss his leave application.

Dated the 20^th day of September 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