MAZHAR IQBAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 152/2019

[2022] HKCFI 3283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 152 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 the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of Pakistan who entered Hong Kong illegally on 18 November 2007 and was arrested by police some 9 months later on 10 August 2008. 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 for taking side with his cousin over her dispute with her former in-laws regarding certain marriage proposal. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Daudi Dara, District Gujrat, Punjab, Pakistan where his cousin married her husband who was a soldier in the Pakistani Army but was killed in 2007 during a military conflict with the Indian troops.

3.  After his cousin was given compensation money by the Pakistani Army for her husband’s death, her former in-laws coveted the money and demanded that she married another of their son, but when she refused, it led to serious conflicts between the two families during which his cousin and her family members as well as the Applicant were threatened and assaulted by her former in-laws and their family.

4.  After one particularly violent incident when he was shot at with guns, the Applicant became fearful for his life, and so on 12 November 2007 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police some 9 months later, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 September 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 28 January 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 perceived enemies 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 intention of them to seriously harm or kill the Applicant given his minor involvement in their dispute with his cousin and her family, that in any event it was a private personal dispute between two families in his home village 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 the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

7.  On 4 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 14 September 2015 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 1 November 2016 his appeal was dismissed by eth Board which also confirmed the Director’s decision.

8.  In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his cousin’s former in-laws that caused him to leave his home country to come to Hong Kong to seek protection, which was further undermined by his failure to raise his claim upon his first arrival in Hong Kong until 9 months later of his arrest by police, and that in any event it was a private dispute between two families in his home district without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan if needed 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.

9.  The Applicant never brought any legal challenge of this decision of the Board. Meanwhile on 13 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 after receiving no such additional facts from him, the Director by a Notice of Further Decision dated 2 February 2017 also rejected the Applicant’s 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 being violated upon his return to Pakistan.

10.  On 8 February 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, and for which the Board did not hold any further oral hearing and proceeded to deal with the appeal in his absence and on paper, and on 28 December 2018 the Board dismissed his appeal upon finding no additional facts from him in support of his BOR 2 Claim after the rejection of his claim under all the other applicable grounds in its earlier decision, and that it also confirmed the further decision of the Director.

11.  On 16 January 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 or his supporting affirmation of the same date in which he just repeated his claim as before that he still has life risk in his home country but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application, and on the factual basis of his own case at the highest, the Applicant’s claim simply does not engage the BOR 2 ground given its limited scope. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in any of its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of this second decision of the Board.

12.  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.

13.  In the Applicant’s case, the fact is that it has also been correctly 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.

14.  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.

15.  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