Saeed Nadeem v. Torture Claims Appeal Board

HCAL 721/2017

[2023] HKCFI 2721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 721 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 20 August 2007 and was arrested by police on 27 September 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim to the Immigration Department on the basis that if he returned to Pakistan he would be harmed or killed by his ex-brothers-in-laws and the supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Pakistan People’s Party (“PPP”) and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his non-refoulement claim.

2.The Applicant was born and raised in Ichra, Lahore City, Punjab, Pakistan and later moved to Green Town, Lahore, Punjab. After leaving school he worked as a factory worker in different factories and printing press in his home district.

3.The Applicant’s first marriage was arranged in 1987 by senior member of Pakistan Muslim League (Q) (“PML(Q)”), and his first wife’s brothers were also workers of PML(Q). The Applicant did not have a good domestic relationship with his ex-wife or her brothers and they divorced in 1991 and later in 1992 he married his second wife and had 6 children.

4.The brothers of the Applicant’s ex-wife thought that the Applicant has ruined her ex-wife’s life for the divorce and threatened to kill him if he approaches near their area in Sant Nagar. In 1994 when the Applicant did approach and tried to meet with his 2 children with his ex-wife, the Applicant was attacked by his ex-brothers-in-laws and suffered cuts and bruises all over his body. From 1995 to 2000 his ex-brothers-in-laws continued to make death threats over the phone but otherwise did not cause any harm.

5.In 2000 the Applicant joined the PPP, which attracted further negative sentiments from his ex-brothers-in-laws who then informed the PML(Q). This resulted in 3 attacks against the Applicant who, on the last occasion, was stabbed in the chest and left forearm by PML(Q) supporters. The Applicant reported the attack to the local police but they did not conduct any investigation. Later in 2014 the Applicant was informed by his mother that his ex-brothers-in-laws had joined the PML(N) as they became the ruling party.

6.Fearing for his safety, in March or April 2007 the Applicant remained a low profile by hiding at his family in-law’s home and then travelled to stay at different friends’ places in Sailkot, Lahore and Rawalpindi for 3 to 4 months, before departing Pakistan for China on 23 June 2007, and from there he later sneaked into Hong Kong. After his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 16 November 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 19 August 2016 rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

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 ex-brothers-in-laws and the PML(N) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence or reason for them to specifically target the Applicant or to continue to have any adverse interest in him after all these years since he left the country in 2007, that it was in any event a private 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 199 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.

9.Meanwhile on 28 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 16 March 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.

10.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 6 August 2013, and for which he attended an oral hearing on 24 April 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 29 September 2017 his appeal was dismissed by the Board which also confirmed both decisions of the Director.

11.In its decision the Board found that the Applicant had never sustained any serious pain or suffering, that there was no evidence of any real intention of his ex-brothers-in-laws and the PML(N) supporters to carry out his threats to kill the Applicant or that they would still have any adverse interest in the Applicant after all these years since he left the country for more than 10 years, and that in the absence of any official involvement that state or police protection would be available to the Applicant upon him return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

12.On 6 October 2017 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forth various 4 grounds for his intended challenge as follows:

(1)  The Board was wrong to say he had not been subjected to any severe pain in the past;

(2)  He in fact had been intentionally assaulted by his enemies with an intention to kill him and suffered severe head injuries and a stab in the chest leaving a very visible scar;

(3)  His ex-brothers-in-laws are connected to the PML(N) which is a ruling party in Pakistan;

(4)  His ex-brothers-in-laws are able to find him easily if he returns to Pakistan due to their family ties even if he relocates to another part of Pakistan; and

(5)  He cannot spend his whole life in hiding and live under constant fear of death.

13.At the leave application hearing, the Applicant has been asked to substantiate his grounds. He repeated his claims and stated that the Prime Minister is still from the same political party at the moment even though there is another election in the near future, that his ex-brothers-in-laws have already found out he is currently in Hong Kong, and that he would be killed upon his return to Pakistan.

14.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 his grounds of appeal apart from being just a repeat of his claims relate to procedure errors which the Board or the Adjudicator may have committed in the decision, or in what way the Board reached the decision wrongly unfairly or unreasonably. 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.

15.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.

16.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.

17.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.

18.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