ULLAH HABIB v. TORTURE CLAIMS APPEAL BOARD

HCAL 1701/2020

[2024] HKCFI 1751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1701 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 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 33-year-old national of Pakistan who entered Hong Kong illegally on 7 March 2017 and 3 weeks later he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his girlfriend’s family who objected to their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Jalalpur Jattan, Gujrat District, Punjab, Pakistan. After leaving school he worked as a salesman in an electronic shop in his home district to make his living.

3.  In 2015 he met and formed a relationship with his girlfriend who came from a wealthy and influential family in his home district, and given the vast difference in wealth and social status between their 2 families, they kept their relationship a secret from her family.

4.  In late 2016 they decided to elope to Lahore so as to live together away from her family by staying in the place of a friend of the Applicant.

5.  However, shortly thereafter police arrived to arrest the Applicant after his girlfriend’s family had accused him of kidnapping his girlfriend. As a result his girlfriend was returned to her family while the Applicant was detained by the police for interrogations, during he was beaten by some police officers, and it was only after his uncle had hired a lawyer to put up bail for him that he was released and returned home.

6.  Eventually the police had decided not to press any charge against him, and his girlfriend’s family had continued to make threats against him that they would kill him if he was ever seen with his girlfriend again.

7.  As a result the Applicant was advised by his family to leave his home district to avoid the threats from his girlfriend’s family, and so he left for Lahore to take shelter in a friend’s place, but when the threatening phone calls from his girlfriend’s family persisted, the Applicant felt it was no longer safe to remain in Pakistan, and so on 13 February 2017 he departed for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 28 August 2018 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”).

9.  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 there will be any real and substantial risk of him being harmed or killed by his girlfriend’s family upon his return to Pakistan 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 him other than to press him to end his relationship with his girlfriend, that in any event it was a private relationship dispute between him and his girlfriend’s family 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 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 areas of the country away from his home district in large cities such as Islamabad where it would be difficult if not impossible for his girlfriend’s family to locate him.

10.  On 10 September 2018 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 26 June 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 August 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his girlfriend’s family over their relationship that caused him to leave Pakistan to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of his girlfriend’s family to seriously harm or kill him other than to press him to end the relationship, and that in any event it was a private relationship dispute between him and his girlfriend’s family without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 24 August 2020 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 his supporting affirmation of the same date to which he just attached a copy of the decision 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, 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 65 - 81 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.

15.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if real 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.

16.  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.

17.  Moreover, the Applicant recently on filed an affirmation requesting to “close” his application as his problem in his home country has been resolved.

18.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more problem for him to return to his home country, 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