MAZHAR SHAREEF BUTT v. TORTURE CLAIMS APPEAL BOARD

HCAL 2126/2018

[2020] HKCFI 2060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2126 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of Pakistan who had repeatedly entered Hong Kong since 1994 under various aliases and subsequently deported, and last arrived in Hong Kong on 26 March 2003 when he again overstayed and was arrested by police on 24 February 2010.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed for failing to marry the girl under a pre-arranged marriage by his parents, and after it was rejected, he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Gujranwala, Punjab, Pakistan.  He never worked in Pakistan and in December 1994 he first came to Hong Kong under a different name and overstayed until his arrest by police in March 1995 when he was then deported back to Pakistan in April 1995.

3.  Thereafter he repeatedly re-entered Hong Kong under various aliases and was deported, and during one of the period when he overstayed in Hong Kong between 1998 and 2002, he formed a relationship with a Philippine woman who gave birth to their son in 2001.  However, when he informed his parents of his intention to marry his girlfriend in Hong Kong, he was told that he was supposed to marry the daughter of a local police inspector in his home district under a pre-arranged marriage by his parents, and when the police inspector heard that the Applicant intended to marry someone else in Hong Kong, he threatened the Applicant’s parents that he would kill the Applicant if he failed to marry his daughter upon his return to Pakistan, and so the Applicant overstayed in Hong Kong until his arrest by the police in 2010 when he raised his torture claim, and after it was rejected by the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 6 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.  By a Notice of Decision dated 18 January 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his claimed risk of harm upon his return to Pakistan is real and foreseeable due to the absence of or low intensity and frequency of past ill-treatment from his uncle other than some verbal threats made to his family in Pakistan, that it is unbelievable that the police inspector would still have any adverse interest in the Applicant after all these years since 2002 over such a matter, that there is no evidence of any threats made directly against the Applicant other than hearsay and speculation, that in any event it was a private personal 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 201 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 Islamabad or Karachi or Lahore where it would be difficult if not impossible for his perceived enemy to locate him.

6.  On 1 February 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 28 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 13 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board accepted the Applicant’s claim of the dispute arose from his refusal to go through a pre-arranged marriage in his home town in Pakistan, but found no reliable evidence of any real threats from the police inspector or from anyone against him, and that the credibility of his claimed fear of such harm upon his return to Pakistan is further undermined by his poor immigration history in Hong Kong and his failure to raise his claim despite all these years in Hong Kong until his arrest by the police that it concluded that he had fabricated his claim for protection in an attempt to delay or prolong his stay in Hong Kong that his claim for non-refoulement protection failed on all applicable grounds.    

8.  On 5 October 2018 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 forward the following grounds for his intended challenge:

(1) procedural impropriety in the Board’s failure to conduct sufficient inquiry into the relevant COI;

(2) procedural impropriety/irrationality in the Board’s failure to provide reasons for its assessment of BOR 3 risk or to provide sufficient basis for its conclusion regarding BOR 3 risk;

(3) error/misdirection in law in the Board’s failure to take into account the considerations of psychological strain and threats to kill the Applicant personally and his family members;

(4) error/misdirection in law in the Board’s failure to apply or properly apply the UN committee general comment concerning the obligation of a signatory state to adopt reforms or means of redress aimed at ensuring the safety of its citizens;

(5) procedural impropriety in the Board’s failure to consider the concept of extended state acquiescence; and

(6) error/misdirection in law in the Board’s failure to consider the Applicant’s fear that he will face the risk upon refoulement and instead only focused that his claim was personal and private problem and that he had not suffered any physical harm from his enemies because he was in Hong Kong despite the fact that his family members had suffered while he was mentally stressed from receiving death threats.  

9.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was the concept of extended state acquiescence to his case, or why it was necessary or relevant to consider his psychological strains when his claim was rejected essentially on his credibility. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

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 Board rejected his claimed fear of harm arose from his failure to go through the alleged pre-arranged marriage upon his return to Pakistan  essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 32 – 41 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.  

12.  The fact is that it has been established by the Director in his decision 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, a decision also confirmed by the Board, 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 I accordingly refuse 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