Javed Mohsin v. Torture Claims Appeal Board

HCAL 130/2019

[2022] HKCFI 3263

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 130 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 30-year-old national of Pakistan who entered Hong Kong illegally on 14 January 2017 and surrendered to the Immigration Department on 16 January 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 local gangster over some land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dharam Pur, Abdul Hakeem, Kabir Wala, Khanaiwai Multan, Punjab, Pakistan. After leaving school he assisted in his father’s farming in his father’s farmland in his home district.

3.One day in July 2016 his father’s farmland was occupied by some local gangsters, and when the Applicant went to their leader Afzal to demand that his men leave his father’s farmland, he was beaten by Afzal’s men and with a warning from Afzal that next time they would kill him if he were to make the demand again.

4.The Applicant then sought assistance from the local police who however treated the matter as a private land dispute between them and refused to intervene, and so the Applicant again went to Afzal to demand that the land be returned to his family, during which Afzal pulled out a gun and fired several shots at the Applicant who however managed to flee form the scene unharmed.

5.After the incident the Applicant became fearful for his life, and so he fled to Lahore to take shelter in his friend’s place, and on 23 November 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 13 January 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 13 February 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 found no substantial grounds for believing that he will face any real personal or foreseeable risk from Afzal or his men upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of Afzal to seriously harm or kill the Applicant as the land in dispute belonged to his father who had never received any threats or harm from Afzal or his men all these years since the Applicant left the country, that on his own evidence that Afzal had since been killed by someone else that there is no longer any factual basis or reason to fear any harm from him, that in any event it was a private land dispute between Afzal and the Applicant’s family 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 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 young man 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 21 February 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 19 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board did not take issue with the Applicant’s claim of land dispute with Afzal but on the factual basis of his own case as confirmed at his oral hearing that the land in dispute was still under his father’s name and that he only stood to inherit it in the future, and that Afzal had since been killed by another person that there would be no further basis or reason to fear any harm from him upon the Applicant’s return to Pakistan, and that in any event it was a private land dispute between them without any official involvement that state or police protection would be available to the Applicant if needed as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 14 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 the decision is unfair and unreasonable but without providing any details or elaboration why it is so, nor was he able to do so at the hearing of his application other than just repeating his claim as before 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.

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 fact is that it has been 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.                 

13.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.

14.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 14^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