Zahid Mehmood v. Torture Claims Appeal Board

HCAL 1417/2021

[2023] HKCFI 2168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1417 OF 2021

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 31-year-old national of Pakistan who entered Hong Kong illegally on 1 October 2019 and was arrested by police almost 8 months later on 29 May 2020. 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 former employer over their monetary dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Tilak Pur, Tehsil & District Sialkot, Punjab, Pakistan. After leaving school he worked for a wealthy employer looking after his employer’s cattle in a ranch situated near the border with India, during which there were occasional shelling between the armies of the 2 countries which scared the Applicant into hiding until the shelling had stopped.

3.One day in April 2019 when the shelling was particularly violent that the Applicant ran away from the ranch to hide in his home, but afterwards when he returned to the cattle ranch, he found all the cattle had died from food poisoning, of which he suspected was done by his employer’s enemies, but when he reported the matter to his employer, his employer became furious and instead demanded huge compensation from him for the loss, and when the Applicant was unable to do so, his employer had him detained for 3 days during which he was tortured by his employer’s men, and was eventually released upon agreeing to pay the compensation within one month.

4.As the Applicant did not have the money to pay any compensation, he therefore fled to Sialkot City and then to Islamabad, but when he later heard that his former employer had sent men looking for him everywhere threatening to kill him, he felt it was no longer safe to remain in Pakistan, and so on 17 July 2019 he departed for China, and from there he later sneaked into Hong Kong, and after 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 2 February 2021 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 10 March 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”).

6.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 former employer and followers 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 former employer to seriously harm or kill him other than to press him to pay compensation for the loss of the cattle, that in any event it was a private monetary 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 238 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 areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

7.On 29 March 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, which was filed slightly outside the 14-day period required under Section 37ZS (1) of the Immigration Ordinance but its late filing was subsequently allowed by the Board, and for his appeal the Applicant attended an oral hearing on 14 July 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 August 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found no evidence of any real intention of the Applicant’s former employer to seriously harm or kill him over the loss of the cattle, and that in any event it was a private monetary dispute between them 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 that his claim for non-refoulement protection failed on all applicable grounds.

9.On 11 October 2021 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, 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.

10.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.

11.In the Applicant’s case, the fact is that it has been correctly 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.

12.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.

13.Furthermore, the Applicant on 21 June 2023 filed an affirmation requesting to withdraw his application as he has been granted his dependent visa but without providing any further details or supporting documents or evidence.

14.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 request to withdraw his application, I accordingly dismiss his leave application.

Dated the 23^rd day of August 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