KHAWAR SALEEM v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2828/2018

[2022] HKCFI 342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2828 of 2018

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 42-year-old national of Pakistan who entered Hong Kong illegally on 21 October 2013 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his wife’s parents who falsely accused him of kidnaping their daughter and then married her without their consent or approval. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Jalalpur Jattan and Gujrat, Punjab, Pakistan where he met his wife who then left her home to move in with him, and subsequently in 2012 they married each other in the village without informing her parents, and when they found out about it, they accused him of kidnaping their daughter to the police, for which the Applicant was arrested and detained by the police for some 3 weeks during which he was interrogated and beaten until his parents brought in a lawyer to bail him out.

3.  However, two weeks later the police arrested him again over a charge of robbery, for which he was detained for more than 2 weeks during which he was again beaten until his parents again hired a lawyer to bail him out, and of which the Applicant suspected that it was another false charge brought by his wife’s parents against him.

4.  One day in early 2013 the Applicant was again arrested by police for a charge of murder which was later changed to robbery for which he was detained for interrogations for 2 months before he was eventually released on bail.  

5.  The Applicant suspected that it was yet another false charge brought against him by his wife’s parents, and to avoid all these threats and harassments, he therefore fled to Lahore, and on 30 September 2013 he departed 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 a Non-refoulement Claim Form (“NCF”) on 19 October 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 10 November 2017 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”).

7.  In his decision the Director found it incredible that the Applicant did not even know the names of his wife’s parents or background and yet they were able to repeatedly make serious false charges against him to the police but he was somehow able to leave the country without problem that the credibility of his claim was found doubtful, that there is no reliable evidence that he is being wanted by the Pakistani police or authorities over any criminal charges, that in any event his problem with his wife’s parents 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 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 Pakistan away from his home district in large cities such as Lahore where he had stayed before without incidents and where it would be difficult if not impossible for his wife’s family to locate him.

8.  On 24 November 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which he attended an oral hearing on 1 August 2018 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board during which he admitted of having divorced his wife due to her parents’ pressure but claimed to still fear of their threats as he had also been attacked by unknown men in Hong Kong whom he suspected were sent by his former wife’s parents to kill him. On 11 October 2018, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found significant inconsistencies and implausibility in the Applicant’s evidence between those given in his NCF and information given before the Director and those given in his appeal hearing before the Board that he was considered not a credible witness and that it rejected his claim of fear of threats or false charges brought against him by his wife’s parents whose names he did not even know or of being wanted or pursued by the Pakistani police or authorities or that his claim of being attacked by unknown men in Hong Kong to have anything to do with his wife’s parents but rather that it was over money that he owed those men as he testified as a witness in the trial and revealed by the court transcript that it concluded that the Applicant had fabricated his whole case for asylum in Hong Kong that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 10 December 2018, the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely stated that the decision is unfair and unreasonable but without providing any details or elaboration as to why it is so, 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.   

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 27 – 49 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.  

13.  The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, 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