Sabir Kamran v. Torture Claims Appeal Board

HCAL 162/2019

[2022] HKCFI 3282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 162 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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of Pakistan who entered Hong Kong illegally on 24 April 2009 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned toPakistan he would be harmed or killed by his brother’s enemies over their monetary dispute and after it was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Christian in Christian Colony, Nori Gate, Sargodha, Pakistan. After leaving school he worked as a ward boy in a local hospital.

3.In his home district there was a video shop which would organize lucky draws for its customers from time to time for which the winner would be awarded a cash prize.

4.On one such occasion in 2004, the Applicant’s brother won the lucky draw, but for some reason the shop owner Habib refused to pay him the winning prize which led to an argument and then a fight between the two sides with the Applicant, his brother and cousin on one side, and Habib and his men on the other, and eventually the fight was only broken up by the police who then arrested the Applicant, his brother and cousin, and during their detention they were beaten by the police but were subsequently released on bail, but thereafter their court case had dragged on for years without resolution.

5.In 2007 the Applicant’s cousin was killed in a traffic accident, of which the Applicant suspected was arranged by Habib, and hence he became fearful that Habib would come after him too, and so on 19 April 2009 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 23 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.While released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 1 October 2016 for undertaking unauthorized employment and was subsequently convicted and sentenced to prison for 22 months and 15 days.               

7.By a Notice of Decision dated 15 February 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by Habib and his men upon his return to Pakistan due to the absence of any past ill-treatment from them, that there is no reliable evidence of any real threats or risk from Habib or his men against the Applicant other than his own speculations, that it is doubtful that Habib would still have any adverse interest in the Applicant after all these years since he left the country, that in any event it was such a minor monetary dispute between them and 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.

9.On 1 March 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 9 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 2 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found numerous inconsistencies discrepancies and contradictions in the Applicant’s evidence as to his account of events occurred in Pakistan prior to his departure that it doubted his credibility and rejected his claim of fear of harm from Habib or the police or of discrimination as a Christian from the Muslim community that caused him to leave his country for Hong Kong, and rejected his claim of having ever been threatened or harmed or ill-treated by Habib or the police or the community in general or that he would face any such risk from any of them upon his return to Pakistan and concluded that his claim for non-refoulement protection failed on all applicable grounds.     

11.On 17 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 rejects the decision as it disregarded his dangerous situation but without providing any details or elaboration as to how it did so, nor was he able to do so at the hearing of his application other than just repeating his claim as before that his problem has worsen in his home country but without putting forward any proper ground for his intended challenge. 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.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 63 – 102 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.  

14.Furthermore, 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 if true 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.                

15.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.

16.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