Hussain Zahid v. Torture Claims Appeal Board

HCAL 307/2017

[2023] HKCFI 2719

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 307 OF 2017

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 the Hon Fung J:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 55-year-old national of Pakistan who entered Hong Kong illegally on 16 December 2013 and was arrested by police on 17 December 2013. 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 maternal uncle and 5 cousins over a land dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Gujar Khan, Pakistan. After leaving school he worked as a taxi driver, got married and raised a family with 4 children in his home district.

3.After the old family house was torn down, the Applicant’s parents and his maternal uncle erected a new house and lived there together. After the Applicant’s parents passed away, his uncle took care of the Applicant and his siblings. In 2011, believing that he owns a share of the new house, the Applicant’s uncle as well as his 5 sons (ie the Applicant’s cousins) requested the Applicant to sell the house and share the profit.

4.In 2012 and 2013, the Applicant was threatened by two unknown males on two occasions to sell the house but they did not cause any actual harm to him apart from a few punches to his chest. The Applicant believes that the two men was sent by his uncle as he was the only one who would make such a demand.

5.The Applicant became fearful for his life, and on 14 November 2013 he departed Pakistan for China and he briefly returned to Pakistan and visited his friend in Islamabad before departing Pakistan for China again on 11 December 2013, 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 10 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 11 February 2016 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”).

7.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 maternal uncle and cousins upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that it was in any event a private domestic dispute 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 maternal uncle or cousins to locate him.

8.On 3 February 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 or non-derogable rights under 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 22 February 2017 also rejected his BOR 2 claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

9.By then the Applicant was in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal for which was filed on 18 February 2016, and for which he attended 2 oral hearings on 17 February 2017 and 6 March 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 May 2017 his appeal was dismissed by the Board which also confirmed both decisions 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 from his uncle and cousins that caused him to leave his country for Hong Kong, particularly when the Applicant’s consent to sell the house would likely diminish or likely eliminate altogether his claim of risk of harm by his uncle who has already passed away in 2014, and that in any event it was a private dispute between his uncle and cousins without any official involvement that state/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 without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

11.On 19 June 2017 the Applicant filed his Form 86 for leave to apply for judicial review of this first decision of the Board, and in his supporting affirmation he put forth various 4 grounds for his intended challenge as follows:

(1)  No reasonable basis for rejecting the Applicant’s claim;

(2)  Failure to consider the extended form of state acquiescence;

(3)  Failure to fully consider all the relevant COI in assessing the Applicant’s claim; and

(4)  No proper basis for considering that internal relocation was available to the Applicant.

12.At the leave application hearing, the Applicant added that his cousins belonged to the Pakistan People’s Party and wherever he goes upon his return to Pakistan, he will be facing death.

13.These are however all just some broad and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant 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 consider the extended form of state acquiescence or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Adjudicator fail to give reasonable basis for rejecting the claim. As such I do not find any of his grounds reasonably arguable for his intended challenge, 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 merits in his intended application either.

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 correctly established by both the Director and the Board in their respective decision that the risk of harm in his claim if real 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.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 I refuse his leave application.

Dated the 18^th day of October 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