NAZAKAT v. TORTURE CLAIMS APPEAL BOARD

HCAL 1107/2020

[2022] HKCFI 777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1107 of 2020

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

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 entered Hong Kong illegally on 21 November 2019 and surrendered to the Immigration Department on 27 November 2019 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal cousin over a land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Saleem Khan, Tehsil Hazro, District Attock, Pakistan. After leaving school he assisted his father to farm on his father’s farmland in his home village inherited from his grandfather, but after his father retired in 2018, his paternal cousin, son of his father’s brother, started to dispute that the farmland should belong to his family instead, and one day while the Applicant was working on the farmland, his cousin came with his followers onto the land to announce to be the owner and drove the Applicant away.

3.  Upon returning home and informing other members of the family, two of the Applicant’s maternal uncles together with the Applicant’s brother accompanied him to return to the farmland to reason with his cousin, but when it broke into a heated quarrel between the two groups, his cousin pulled out a pistol and shot at the Applicant’s company, hitting the Applicant in his leg, while his brother and his two uncles were also shot dead.       

4.  While wounded the Applicant managed to escape to his friend’s home in the village, and was subsequently taken to the hospital in Hazro, and later upon his discharge from hospital, he was still fearful for his life and fled to Rawalpindi, but later when he heard that his cousin was looking for him there, the Applicant felt it was no longer safe to remain in Pakistan, and so on 23 October 2019 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 December 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

5.  By a Notice of Decision dated 3 February 2020 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 assessed the level of risk of harm from his cousin and followers upon his return to Pakistan as low due to the fact that the farmland did not belong to the Applicant that there is no real intention for his cousin to kill him over the land, 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 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 207 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 Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for his cousin to locate him.

7.  On 12 February 2020 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 20 April 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 11 May 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted the Applicant’s evidence of dispute with his cousin over his father’s farmland and the resultant threats and attack by his cousin and his followers but found that it was a private family dispute between them 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 area away from his home district without any risk of being located by his cousin that his claim for non-refoulement protection failed on all applicable grounds.     

9.  On 5 June 2020 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 without putting forth any proper ground for his intended challenge. 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 fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim 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.     

12.  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.

13.  Furthermore, the Applicant recently on 26 January 2022 filed an affirmation stating that he wants to close his case as he wants to return to his home country.

14.  In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation of his intention to return to Pakistan, I accordingly dismiss his leave application.

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