Ahmad Mahmood v. Torture Claims Appeal Board

HCAL 2898/2019

[2023] HKCFI 1301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2898 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 / 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 37-year-old national of Pakistan who last arrived in Hong Kong on 23 March 2015 as a visitor with permission to remain as such up to 30 March 2015 when he did not depart and instead overstayed, and was arrested by police on 24 May 2015. 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 cousins over some land dispute in their home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dharampur, Abdul Hakim, Khanewal, Punjab, Pakistan where his father and uncle jointly owned some farmland in equal shares inherited from his grandfather, and later his 2 cousins inherited his uncle’s share upon the passing of his uncle.

3.After his father later also passed away, and upon leaving school the Applicant in 2012 started to farm on his father’s farmland, but his cousins however insisted that those land belonged to them and demanded the Applicant to leave, and when he refused, they then threatened and assaulted him until they were restrained by the neighbours.

4.After the incident the Applicant approached the village’s elders for help, but his cousins still refused to listen to them to resolve the matter, and instead continued to threaten the Applicant, and assaulted him whenever they saw him.

5.To avoid their threats and harassments, the Applicant fled to Islamabad to take shelter in a friend’s place, and on 7 November 2013 he departed for China where he worked in a friend’s mobile phones business.

6.However, as he was still concerned that his cousins might be able to locate him in China, and so on 23 March 2015 he travelled to Hong Kong where he subsequently overstayed, and upon 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 30 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 30 September 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then 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”).

8.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 there was no evidence of any real intention of his cousins to seriously harm or kill the Applicant other than to deter him from raising any claim over the land, 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 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 adult with working experience to move to other part of the country away from his home district in large cities such as Lahore or Islamabad where it would be difficult if not impossible for his cousins to locate him.

9.On 8 June 2017 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 27 April 2016 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 March 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm form his cousins that caused him to flee his home country for China and subsequently Hong Kong, but found in any event that it was a private family dispute over some farmland between the Applicant and his cousins without any 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 away from his home district without any risk of being located by his cousins that his claim for non-refoulement protection failed on all applicable grounds.

11.Meanwhile on 20 April 2017 the Director on his own initiative in writing 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 and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 31 May 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a real and personal risk of his absolute and non-derogable right under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

12.The Applicant again lodged an appeal to the Board against the Director’s Further Decision, and for which the Board did not find it necessary to hold another oral hearing and dealt with the appeal in the absence of the Applicant and on papers, and by a decision dated 27 September 2019 the Board dismissed his appeal upon finding that on the factual basis of his own case that the Applicant’s claim simply did not engage the BOR 2 ground, and that it also confirmed the Director’s Further Decision.

13.On 2 October 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, 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, and that I also agree with the Board that on the factual basis of the Applicant’s own case that his claim did not engage the BOR 2 ground.

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 also been established by both the Director and the Board in their respective 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, 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.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.

17.Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as he has no more problem in his home country and that he wants to go back to Pakistan.

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 it is now safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 17^th day of May 2023

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