RAFAQAT alias RAFAQAT MAKARAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 455/2024

[2024] HKCFI 2108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 455 OF 2024

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 the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of Pakistan who entered Hong Kong illegally on 7 March 2009 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 for protection on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle over their land dispute in his home village and/or that it was not safe to be in Pakistan due to the many violent incidents caused by extremist groups within the country. He was subsequently released on recognizance pending the determination of his claim, but was again arrested in January 2011 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 14 months, whereupon a removal order was issued against him by the Immigration Department on 21 November 2011 pending his claim.

2.  The Applicant was born and raised in Village Sirka, Tehsil Hazro, District Attock, Punjab, Pakistan. After leaving school he farmed on the farmland inherited from his father in his home village, but which was coveted by his paternal uncle who lived in the same village, and in 2009 when the Applicant tried to sell his land, his uncle threatened him not to as he wanted the land for himself, but the Applicant refused and proceeded to put his land on the market for sale.

3.  A few weeks later his uncle came with several men to threaten the Applicant, and proceeded to beat him with wooden sticks that the Applicant suffered cuts and bruises all over his body, and was subsequently taken to a hospital for medical treatments.

4.  About 2 weeks thereafter his uncle and his followers again came to the Applicant’s home to threaten him over the sale of his land, and after giving him another beating, his uncle then pulled out a pistol and warned the Applicant that next time if he still failed to heed his demand, he would shoot him with his pistol.

5.  The Applicant therefore became fearful for his life and fled from his home village for Swabi to take shelter in a friend’s place, during which he also noted many violent incidents in his country which killed and injured many ordinary citizens by various extremist groups that caused him to believe that it was not safe to remain in the country, and so in early 2009 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 October 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  While released on recognizance pending the determination of his claim, and in between 2014 and 2021 the Applicant had been arrested on various occasions and convicted of 11 counts of criminal offences for which he was sentenced to prison for a total term of almost 4 ½ years, and that he had also failed to report on his recognizance on 9 occasions and jumped bail on 2 occasions.

7.  By a Notice of Decision dated 3 November 2023 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”).

8.  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 substantial risk of him being harmed or killed as claimed upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from his uncle and followers or any evidence of any real intention of them to seriously harm or kill him over what was essentially a private land dispute between him and his uncle only without any official involvement that state or police protection would be available to the Applicant if resorted to, while the fact of many violent incidents in Pakistan caused by extremist groups that had killed and injured many citizens had nothing to do with the Applicant and was not relevant in any way to his non-refoulement claim, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are also available in Pakistan with a large population of 241 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 areas of the country away from his home district in large cities such as Karachi or Lahore where it would be difficult if not impossible for anyone to locate him.

9.  On 16 November 2023 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 January 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 February 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  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 uncle or violent incidents common in his country that caused him to leave Pakistan to come to Hong Kong to seek protection, that there was no relevancy of any violent incidents in his home country to his non-refoulement claim nor any reliable evidence of any real intention of his uncle to seriously harm or kill him over some private land dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan 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.

11.  On 12 March 2024 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, and in his supporting affirmation of the same date he just repeated his claim as before and made bare and vague assertions that the Adjudicator did not properly consider his claim or that interpreter failed to assist him without providing any necessary or relevant details or particulars or elaboration to corroborate his assertions, nor did he attend the scheduled hearing of his application or to update the Immigration Department or the Court of his latest address or contacting telephone number, as he was duty-bound to do so, that the Court was subsequently unable to contact him upon his failure to attend the scheduled hearing.

12.  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 as he also failed to attend the hearing of his application without any explanation, 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 paragraph 18 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 his 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.  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.

17.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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