SHAH SYED SHAHBAZ ALI v. TORTURE CLAIMS APPEAL BOARD

HCAL 624/2019

[2022] HKCFI 1395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 624 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of Pakistan who entered Hong Kong illegally on 21 August 2009 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his maternal uncle due to a land dispute between his uncle and his mother in the home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Kabir Wala, Multan Road, Takbir Town, Khanewal, Pakistan. After leaving school he worked as a welder in his home village where his mother inherited a piece of land from his grandfather but which had become the subject of frequent disputes between her and the Applicant’s uncle over its use.

3.  In around 2003, after a fierce quarrel between the two of them, his uncle shot his mother with his gun that she was brought to the hospital for emergency operation, while his uncle was arrested by the police.

4.  After he was later released on bail, his uncle called the Applicant and threatened to shoot him next, whereupon the Applicant fled to Faisalabad to take shelter in another uncle’s place for about one year before moving back to Takbir Town in 2004 where he worked as a welder, but as he was still fearful for his safety notwithstanding the fact that his mother had subsequently sold the land, the Applicant departed Pakistan in August 2009 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed Supplementary Claim Form (“SCF”) on 10 October 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 6 February 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 uncle upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from his uncle, that his mother had sold the land years ago that there would not be any cause for dispute with his uncle, that in any event whatever problem there may still be between his family and his uncle was a private family matter 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 part of Pakistan away from his home district in large cities such as Islamabad or Faisalabad where he had stayed before without incidents and where it would be difficult if not impossible for his uncle to locate him.

7.  On 23 February 2015 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 21 December 2015 before the Board during which he gave further evidence and also answered questions raised of his claim by the Adjudicator for the Board. On 21 December 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found the basis of the Applicant’s claim to be essentially a private dispute between his mother and his uncle long time ago without any evidence of any further threats from his uncle against him since his departure of the country years ago that it is doubtful that his uncle would still have any adverse interest in him after all these years, that in any event in the absence of 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 that his claim for non-refoulement protection failed on all applicable grounds.     

9.  Meanwhile on 20 January 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 10 February 2017 also rejected his BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 Risk being violated upon his return to Pakistan.

10.  On 20 February 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which he attended another oral hearing on 24 December 2018 before the Board during which he gave further evidence and answered questions raised of his claim by the Adjudicator for the Board.

11.  On 15 February 2019 the Board again dismissed his appeal upon finding that the Applicant had failed to show any further evidence of threats from his uncle since he left the country, and maintained the view that his uncle’s dispute if any was with his mother that it is not accepted that the Applicant’s fear of being ill-treated, harmed or killed by his uncle would materialize, and concluded that his claim for non-refoulement protection also failed under the BOR 2 ground and that it also confirmed the further decision of the Director.

12.  On 5 March 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he is not satisfied with the decision as his life is still in danger in his home country but without putting forth any proper ground for his intended challenge, 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, and given the fact that even on the basis of his own case at the highest that the Applicant’s claim simply did not engage the BOR 2 ground, I do not find any reasonably arguable basis for his intended challenge.

13.  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.

14.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their earlier decisions that the risk of harm in his 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.     

15.  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.

16.  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