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HCAL 175/2019
[2023] HKCFI 471
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 175 of 2019
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BETWEEN
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Rai Nandeshwar |
Applicant |
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and |
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Torture Claims Appeal Board |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 47-year-old national of Pakistan who last arrived in Hong Kong on 14 April 2004 with permission to continue to work as a foreign domestic helper until the expiration of his employment contract on 1 September 2004 when he did not depart and instead overstayed, and was arrested by police some 4 years later on 10 August 2008. 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 by his former girlfriend’s family who objected to their relationship, 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 Kasoor, Punjab, Pakistan. After leaving school he worked as a farmer in his home district, and in 2001 started to date a girl from a wealthy family with political connections.
3. In February 2002 their relationship was discovered by her family who objected to such due to the Applicant’s poor background, and one day in early 2002 when her brothers confronted the Applicant and beat him with wooden sticks, and threatened to kill him next time if he still failed to end his relationship with their sister.
4. After the assault the Applicant became fearful for his life, and so he departed Pakistan later in the same year to come to work in Hong Kong as a foreign domestic helper until November 2002 when he returned to Pakistan.
5. However, when he learnt that his former girlfriend’s family were still looking for him, he again departed Pakistan in April 2004 for Hong Kong to resume his job as a foreign domestic helper, but after his last employment expired on 1 September 2004, he did not depart and instead overstayed in Hong Kong, and upon his subsequent arrest 4 years later in August 2008, 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 4 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
6. By a Notice of Decision dated 25 September 2017 the Director of Immigration (“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”).
7. 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 former girlfriend’s 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 the Applicant after all these years since he last saw his former girlfriend in 2002 before he left the country that it is not accepted that they would still have any adverse interest in him, that in any event it was a private 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 204 million people spread across a vast territory of more than 770,000 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 Karachi where it would be difficult if not impossible for anyone to locate him.
8. On 6 October 2017 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 2 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 November 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.
9. In its decision the Board accepted the Applicant’s claim of fear of harm from his former girlfriend’s family over their relationship but found no evidence of any real intention of his former girlfriend’s family to seriously harm or kill him or any reason for them to still have any adverse interest in him after all these years since he left the country, and that in any event it was a private personal 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 part of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.
10. On 18 January 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 to which he just attached a copy of the decision without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.
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 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 I accordingly refuse his leave application.
Dated the 10th day of March 2023.
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(TAM Kam-man)
for Registrar, High Court
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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 his solicitors must:
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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)).
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Sent to the Applicant on 10 March 2023
Rana Muhammad Munawar Hussain
Applicant’s ref. no.:
Nil. |
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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 10 March 2023
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 8735/17/10/65/P1724
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2189/17 (formerly RBCZ 10750/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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