Shahzad Amir v. Torture Claims Appeal Board

HCAL 1481/2022

[2023] HKCFI 1735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1481 OF 2022

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 25-year-old national of Pakistan who entered Hong Kong illegally on 17 October 2019 and some 6 months later he surrendered to the Immigration Department and 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 between their 2 families in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Rehmu, Tehsil Hazro, District Attock, Punjab, Pakistan where his father and uncle jointly inherited his grandfather’s land in the village.

3.Upon the death of the uncle in 2016, his 3 sons, i.e. the Applicant’s cousins, came to the Applicant’s father demanding that the land be distributed to them, but which led to constant conflicts and quarrels between the 2 families when they were unable to agree on the share or ratio of the distribution.

4.One day in late 2017 his 3 cousins came onto the land in dispute and started constructions without the consent of the Applicant’s father, and when the Applicant and his father tried to stop them, it led to a fight between them during which the Applicant was struck on the head by a wooden stick that he lost consciousness.

5.After the fight but as they were still unable to resolve the dispute, his cousins then threatened the Applicant’s father that they would kill the Applicant if they were unable to get what they wanted.

6.Fearing for his safety, the Applicant’s father therefore advised him to leave town to avoid the risk, and so the Applicant went to Lahore where he stayed for 5 months, but one day while he was at the local bazaar, some unknown men rode by on a motorcycle and fired several shots at him with a shotgun but missed him.

7.Although he managed to make his escape unharmed, the Applicant suspected that those men were sent by his cousins to kill him, and believing that it was no longer safe to remain in Pakistan, the Applicant therefore departed on 12 October 2019 for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 November 2020 and attended screening interview before the Immigration Department with legal representation.

8.By a Notice of Decision dated 14 April 2021 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 there is no evidence of any real intention of them to seriously harm or kill him, that in any event it was a private land dispute between their 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 238 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 areas of the country away from his home district in large cities such as Islamabad or Karachi where it would be difficult if not impossible for his cousins to locate him.

10.On 26 April 2021 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 20 June 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 October 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board accepted the Applicant’s claim of risk of harm from his cousins over their land dispute but found no evidence of any real intention of his cousins to seriously harm or kill him, and that in any event it was a private matter between their families 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.

12.On 13 December 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge, and while in many of them the Applicant referred to the Director, for the present purpose I shall treat them as against the Board and its decision:

(1)  That the Board failed to appreciate or give proper importance or weight to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(2)  That the Board failed to take into account or to give sufficient weight to the argument that the Applicant was tortured at the behest of and in collusion of the police and the state law enforcement agencies as well as those in the political circles that the state would be rendered liable to the Applicant 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 Board had listed relevant COI which supported the Applicant’s aversions that the police in Pakistan would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant;

(4)  That the Board while referring to relevant COI kept including meaning that suited its pre-conceived conclusion which is a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by Wednesbury test in not taking into account that corruption and incompetency of the administration in Pakistan is still a very serious problem as various human rights organizations have complied reports on the matter which stated testament to the Applicant’s assertions that the decision of the Board should be considered unreasonable in the scope of public law.

13.Those grounds are however all just some vague and bare assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why would State Acquiescence be relevant to his case, or when had the Applicant ever been tortured by the police or law enforcement agencies or politicians when even on the factual basis of his own case that any ill-treatment which he claimed to have faced were from his cousins over their private dispute within the family without any involvement of the state or authorities or politicians at all. As such and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable 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 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 has recently filed an affirmation requesting to withdraw his application as he wants to return to his home country and that it is now safe for him to do so.

18.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 5^th day of July 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