Iqbal Shahid v. Torture Claims Appeal Board

HCAL 773/2019

[2023] HKCFI 3014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 773 OF 2019

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:

1.  The application for leave to apply for Judicial Review be reinstated; and

2.  Leave to apply for judicial review refused

Observations for the Applicant:

1.The Applicant is a 46-year-old national of Pakistan who entered Hong Kong illegally in May 2013 and was arrested by police on 12 May 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 the Hakim Din Family from his home district due to historical conflicts and disputes between them and the Applicant’s family. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sang Mora Kikri, District Mirpur, Azad Kashmir, Pakistan. After leaving school he assisted in his family’s transportation business, got married and raised a family with 2 children in his home district where his family had a long history of conflicts and disputes with the Hakim Din Family going back to his grandfather’s time which had further deteriorated when some farmland of his father were stolen by Hakim Din through bribery, and due to such conflicts the Applicant also had had his share of physical and sometimes even violent confrontations with Hakim Din’s sons and relatives over the years.

3.To avoid such conflicts the Applicant had one time moved to Sarai Alamgir to stay with one of his distant relatives for some 7 years until 2004 when he returned to his home district, but soon he again ran into confrontations with Hakim Din’s sons when he was assaulted by them on the streets, whereupon he again fled to Kakra Town where he stayed for 4 years before returning to his home district in 2008.       

4.However, as his conflicts with Hakim Din Family persisted, and when he later heard that Hakim Din’s sons had even made some false charges against him to the police, the Applicant decided that it was no longer safe to remain in Pakistan, and so on 8 May 2013 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 Torture Claim Form (“TCF”) on 15 July 2013 as well as a Supplementary Claim Form (“SCF”) on 30 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 30 January 2015 and a Notice of Further Decision dated 18 May 2017 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 decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Hakim Din Family 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 historical feud between the 2 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 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 areas of the country away from his home district in large cities such as Karachi where it would be difficult if not impossible for the Hakim Din Family to locate him.

7.On 6 February 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s earlier decision, and for which he attended 2 oral hearings on 6 April 2016 and 13 December 2018 before the Board under all the applicable grounds during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 12 February 2019 his appeal was dismissed by the Board which also confirmed both decisions of the Director.

8.In its decision the Board accepted the Applicant’s claim of historical disputes between his family and Hakim Din Family as well as their relatives which dated back to the time of the Applicant’s grandfather, but found many of the Hakin Din’s family or relatives with whom the Applicant personally had had conflicts or disputes either moved elsewhere of the country or settled overseas that it is not accepted that they would still have any adverse interests in the Applicant after all these years since he left the country in 2013, and that in any event these were all private disputes 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 20 March 2019 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 in which he just repeated his claim as before, and on 22 June 2020 he filed an affirmation requesting to withdraw his leave application as all his problems in his home country had been resolved, and accordingly on 23 July 2020 this Court granted an order allowing him to do so.

10.However, more than 3 years later on 11 September 2023 the Applicant filed another affirmation requesting to re-open his application as he had earlier mistakenly believed that his problems in his home country had been resolved but it has now turned out that his life will still be in danger in Pakistan without providing any further details or particulars as to how it is so, but in order to save time and to properly and fully consider the merits of his case, I allowed his request and re-instated his application for determination, but as noted above the Applicant had neither in his Form nor supporting affirmation put forth any proper ground for his intended challenge, nor did he do so in his latest affirmation other than just repeating his claim as before, 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.

11.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.

12.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 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, 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 I refuse to grant leave and dismiss his leave application.

Dated the 20^th day of November 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