Yousaf Waseem v. Torture Claims Appeal Board

HCAL 144/2019

[2022] HKCFI 3284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 144 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 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 39-year-old national of Pakistan who entered Hong Kong illegally on 12 January 2015 and surrendered to the Immigration Department some 3 months later on 29 April 2015 and raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a business associate of his family over some business dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ghazipura, Shadbagh, Lahore, Pakistan into a wealthy family where his father and uncle ran a travel agency business known as Yousaf Travels (“YT”) in which his cousins also assisted in its operation but which the Applicant was never involved.

3.In 2013 YT organized a tour to Saudi Arabia for its customers where the accommodation service was arranged by another company known as HS Travel Agency (“HS”) ran by the Mustafa family, but subsequent problems arose from such arrangements that YT had to refund its customers for their expenses, and when YT demanded compensation from HS, it led to arguments between members of the two families which deteriorated into fights involving guns and other weapons, and resulted in the death of the Applicant’s father and a cousin, and also deaths in the Mustafa’s family.    

4.While the Applicant was never involved in the dispute or the ensuing fights between the two families, he was nevertheless arrested by police on several occasions for investigations over some false charges made against him but was invariably released without charge.

5.Upon his release from police custody, his wealthy father-in-law hired body-guards to protect him, yet the Applicant was concerned about further revenge action from the Mustafa family or any further police harassments, and on his lawyers’ advice he departed Pakistan on 14 July 2014 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 11 April 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 2 May 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 the Mustafa family upon his return to Pakistan as low due to the absence of any past ill-treatment from them, that there was no evidence of any real intention of them to target him for harm as he was never involved in the business dispute or that there would still be any adverse interest in him after all these years since he left the country, that in any event it was a private dispute between the two families 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 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 the country away from his home district in large cities such as Islamabad where it would be difficult if not impossible for anyone to locate him.

8.On 9 May 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 8 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 31 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to his claim but gave him benefit of the doubt that there had been business dispute between his family and Mustafa’s which led to fighting and killings in both families but found no evidence of any threats being directed against the Applicant who was never involved in his family’s business or the subsequent dispute and conflicts with the Mustafa family or of any reason for them to have any adverse interest in him, nor any interest of the police or authorities in him notwithstanding the various false charges given the fact that he was always released without charge and that he was able to leave the country without problem, that in any event he would be entitled to due process and fair trial under the current legal system in Pakistan and with financial ability to defend any false charge that he may face upon his return to his home country, and that upon his concessions to the Board during his appeal hearing that he has the financial means from both his family and his in-laws to deal with any legal actions which he may have to face and with body guards’ protection that he no longer has any fear to return to his home in Pakistan that the Board concluded that the Applicant will not face any risk of any of the proscribed harm from anyone upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.      

10.On 15 January 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 just stated that he does not agree with the decision as his life would be in grave danger in his home country, that state protection is non-existent, and that internal relocation is practically impossible against terrorism but without any details or elaborations for his such bare assertions and which are in my view not reasonably arguable for his intended challenge on the factual basis of his own case as a private business dispute between his family and business associates, nor did he attend the hearing of his application without any explanation. 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 Board accorded him with benefit of doubt but rejected his claim on its findings of no risk of harm that he would face upon his return to his home country for the thorough and detailed analysis and reasoning set out in paragraphs 58 – 93 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the findings of the Board.  

13.The fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s 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.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.

15.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 10^th day of November 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