HUSSAIN MAZHAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1976/2020

[2021] HKCFI 796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1976 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 28-year-old national of Pakistan who entered Hong Kong on 4 May 2018 based on his dependent visa due to his marriage to a local Hong Kong resident with permission to remain up to 4 May 2019 subject to application for further extension, but on December 2018 he was arrested by police for indecent assault and was subsequently convicted and sentenced to prison for 9 months, and upon his discharge from prison and the expiration of his dependent visa without any application for further extension, he was transferred to the Immigration Department for deportation when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his uncle over some personal disputes.

2.  The Applicant was born and raised in Sheikhupura, Punjab, Pakistan, and upon graduating from the university he worked in a telecommunication company in his home district.

3.  In 2013 his uncle campaigned in a local election and sought the Applicant’s support, but the Applicant refused, and after losing the election his uncle blamed him and sent his men to beat him up, and when his uncle made further threats against him, the Applicant became fearful for his life, and fled for Lahore and then Karachi, and in December 2015 he departed Pakistan for Saudi Arabia where he stayed until April 2017 when he returned to his home in Pakistan.

4.  In October 2017 he married his wife who is a resident from Hong Kong, and to avoid further threats from his uncle, he moved to stay with his wife in Lahore. In early 2018 his wife returned to Hong Kong and applied for a dependent visa for the Applicant which was subsequently granted in April 2018, and so the Applicant departed Pakistan in April 2018 for Hong Kong where he was later arrested by police and charged for the offence of indecent assault for which he was subsequently sentenced to prison for 9 months, and upon his discharge from prison and was transferred to the Immigration Department, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 June 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 29 June 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 uncle and his men upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention on the part of his uncle to harm or kill him, 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 233 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 young man with working experience to move to other part of Pakistan away from his home district in large cities such as Islamabad or Karachi where it would be difficult if not impossible for his uncle to locate him.

7.  On 9 July 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 16 September 2020 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 29 September 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 claim of personal dispute with his uncle but found no reliable evidence of any real intention of his uncle to harm or kill him over such personal dispute, and that in any event in the absence of any official involvement that state or police protection would be available upon his return to Pakistan as well as reasonable internal relocation for him to safely move to other part of Pakistan without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 30 September 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in his Form other than a broad assertion that the decision is not reasonable or fair without any particulars or elaboration why it is so, nor did he put forward any other proper ground for his intended challenge, 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 decision 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.     

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 on 7 January 2021 filed an affirmation requesting to withdraw his application as he is satisfied with the decisions of the Director and the Board. 

14.  In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that he no longer wish to challenge the decisions of the Director or the Board, 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