Case Document

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HCAL 1372/2020

[2024] HKCFI 368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1372 OF 2020

BETWEEN
	Mehreen	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 37-year-old national of Pakistan who arrived in Hong Kong on 26 October 2016 with her then 11-year old daughter as visitors with permission to remain as such up to 9 November 2016 when they did not depart and instead overstayed, and on 17 November 2016 they surrendered to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they returned to Pakistan they would be harmed or killed by the first wife of the Applicant’s husband and her family who blamed the Applicant for ruining her marriage. They were subsequently released on recognizance pending the determination of their claim.

2.The Applicant was born and raised in Tehsil Hazro, Attock, Punjab, Pakistan. After leaving school she married her husband as his second wife which is allowed by law in Pakistan for Muslim men, and resided with him in her home district while his first wife Sinawar lived in another house in the same neighbourhood with their children.

3.In 2005 the Applicant gave birth to her daughter, but when her daughter started attending school she soon became a target for bullying by Sinawar’s 3 brothers due to Sinawar’s resentment of the Applicant for marrying her husband.

4.In 2015 the Applicant started to accompany her daughter to school to protect her from being bullied by Sinawar’s brothers who then threatened to kill her and her daughter for causing their sister to feel miserable, of which the Applicant complained to her husband who then tried to talk to Sinawar and her brothers but to no avail.

5.On one occasion in November 2015 her daughter suffered a particularly severe beating by Sinawar’s brothers, and when the police treated the matter as a private family dispute and refused to take any action, the Applicant felt it was no longer safe for her and her daughter to remain in Pakistan, and so on 25 October 2016 they departed Pakistan for Hong Kong where they subsequently overstayed and jointly raised their non-refoulement claim for protection, for which the Applicant completed a Non-refoulement Claim Form (“NCF”) on 5 January 2018 for herself and her daughter and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 30 January 2018 the Director of Immigration (“Director”) rejected their claims on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of their 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”).

7.In his decision the Director took into account of all the relevant circumstances of the claim of the Applicant and her daughter and found no substantial grounds for believing that their perceived fears of being harmed or killed by Sinawar or her 3 brothers upon their return to Pakistan are real or foreseeable due to the absence of or 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 them other than to drive them out of the family, that in any event it was a private family dispute between them without any official involvement that state or police protection would be available to the Applicant and her daughter 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 204 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 to move with her daughter to other areas of the country away from their home district in large cities such as Karachi or Islamabad where it would be difficult if not impossible for anyone to locate them.

8.On 12 February 2018 the Applicant lodged an appeal for herself only to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 7 January 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board, and that she also confirmed that she has since divorced her husband and also withdrawn her daughter’s claim as her daughter is no longer at risk of any harm. On 26 June 2020 the Applicant’s appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of dispute with her husband’s first wife and her brothers over their family discords but found no evidence of any real intention of them to seriously harm or kill the Applicant in particularly now that she has since already divorced her husband, and that in any event it was a private family dispute between them without any official involvement that state or police protection would be available to the Applicant upon her return to Pakistan as well as reasonable internal relocation for her to move safely to other part of the country without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

10.On 2 July 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she asserted that the decision is unfair, absurd and erroneous but without providing any further details or particulars or elaboration as to how it is so. As such and in the absence of any error of law or irrationality or procedural unfairness in her 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 her 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 correctly established by both the Director and the Board in their decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Pakistan, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.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.Moreover, the Applicant recently on 19 October 2023 filed an affirmation requesting to withdraw her application as she now wants to return to her home country.

15.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 her latest confirmation of her wish to return to her home country, I accordingly refuse to grant leave and dismiss her leave application.

Dated the 1^st day of February 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 1 February 2024 Mehreen Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 1 February 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 10309/18/2/193/P1987 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3542/17 (formerly RBCZ/10365/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)