Raza Ali v. Torture Claims Appeal Board

HCAL 765/2021

[2023] HKCFI 2417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 765 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;

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 1 December 2015 and surrendered to the Immigration Department on 16 December 2015 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the village head of his home village over a land dispute with his family. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kot Mahraj, Tehsil Sambrial, District Sialkot, Pakistan. After leaving school he assisted in his family’s farming on a farmland in his home village but which was coveted by the village head who disputed the ownership of the land, and was able to obtain its possession in 2013 by a court order through his political connections, whereupon the village head tried to evict the Applicant’s family from the land by threatening to kill them if they refused to do so.

3.Eventually the Applicant’s father succumbed to the threats and moved the family out of the village to Daska, but decided to appeal against the court order, while the Applicant also moved to Lahore and then Faisalabad, but later when he heard that the village head had sent men looking for him everywhere, and had even made false kidnapping charges against him to the police to try to put pressure on his family to abandon their appeal, the Applicant therefore felt it was no longer safe to remain in Pakistan, and so on 23 September 2015 he departed 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 30 April 2018 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before an immigration officer for alleged medical reason.

4.While released on recognizance pending the determination of his claim, the Applicant was arrested by police on 24 February 2016 for undertaking unauthorized employment, and was subsequently referred to the Immigration Department for investigation.

5.By a Notice of Decision dated 28 June 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”).

6.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 would be harmed or killed by the village head upon his return to Pakistan due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of the village head to seriously harm or kill the Applicant or to continue to have any adverse interest in him after all these years since he left the country, nor is there any evidence that he had been pursued by the police given that he was able to leave the country without any problem, that in any event it was a private land dispute between the village head 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 205 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 Lahore or Islamabad where it would be difficult if not impossible for anyone to locate him.

7.On 12 July 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 13 November 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 March 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found inconsistencies discrepancies and implausibility in the Applicant’s evidence that it formed the view that he is not a witness of truth and that he had fabricated and exaggerated his claim that it rejected his claim of fear of harm from the village head that caused him to flee from his country to come to Hong Kong, and concluded that the Applicant has failed to establish that there is any real or personal risk of him being harmed or ill-treated by anyone if refouled to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

9.On 25 May 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 forward any proper ground for his intended challenge, nor was he able to do so at the hearing of 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 38 – 89 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 finding of the Board.

12.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 real 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.

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 accordingly refuse his leave application.

Dated the 26^th day of September 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