MEHMOOD SAJID v. TORTURE CLAIMS APPEAL BOARD

HCAL 2538/2018

[2022] HKCFI 720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2538 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 the Applicant in open court

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Pakistan who entered Hong Kong illegally on 23 March 2008 and was arrested by police on 8 October 2009. 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 by the family of a friend who blamed him for his friend’s death. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Haidera, District Attock, Pakistan. After leaving school he worked as a farmer in his home village, and hanged out with his childhood friend Haroon from the neighboring village.

3.  However, in 2008 their friendship turned sour due to some argument between them over Haroon’s relationship with his girlfriend, and one night after Haroon was found dead on the roadside outside his village, his family suspected the Applicant was somehow implicated and came to his home accusing him of murdering Haroon, and despite the Applicant’s denial that he went home before Haroon left, they took him away for interrogations during which they beat him by punching and kicking him violently, but later the Applicant managed to make his escape and fled to Rawalpindi to take shelter in a friend’s place.    

4.  The Applicant never sought assistance from the police, but as he was still fearful for his life, he therefore departed Pakistan on 21 March 2008 for China, and from there he later sneaked into Hong Kong on 23 March 2008, and after his arrest by the police more than 1 ½ year later on 8 October 2009, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 31 May 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 23 September 2014 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 Haroon’s family or the police upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them or any adverse interest of the police in him, that in the absence of any evidence of his involvement in Haroon’s death or of being pursued by the police 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 Pakistan away from his home district in large cities such as Lahore or Rawalpindi where it would be difficult if not impossible for Haroon’s family to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 13 August 2015 before the Board during which he gave further oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 1 March 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found the Applicant’s evidence evasive, inconsistent and contradictory that it doubted the credibility of his claim in the absence of any further or documentary evidence to corroborate his bare assertions despite being legally represented by DLS during his earlier process before the Director, which had been further undermined by his failure to raise his claim upon his arrival in Hong Kong until more than 18 months later and only after his arrest by the police that it rejected his claim of fear of harm from Haroon’s family or the police for fleeing Pakistan for Hong Kong as unreliable and incredible, and concluded that there is no real or substantial risk or chance of him facing any of his claimed harm upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.        

9.  Meanwhile on 19 December 2016 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 in the absence of any response from him, the Director by a Notice of Further Decision dated 11 January 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.  The Applicant again lodged an appeal to the Board against that further decision of the Director, for which the Board did not hold any further oral hearing upon finding that the Applicant had failed to put forward any additional facts or information which might be relevant to his BOR 2 Claim, and on 7 November 2018 it again dismissed his appeal on the basis that it had earlier already rejected the credibility of his claim and that he had failed to submit any further evidence to support or advance his BOR 2 Claim, and that it also confirmed the further decision of the Director. 

11.  On 12 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s second decision of 7 November 2018, and in his supporting affirmation of the same date he put forth the following grounds for his intended challenge:

(1) No reasonable basis for rejecting the Applicant’s claim;

(2) Failure to consider the extended form of state acquiescence;

(3) Failure to fully consider all the relevant COI in assessing his claim;

(4) Irregularity of the decision-maker being a different person than the interviewing officer;

(5) Procedural impropriety/unfairness in failing to investigate into the COI of Pakistan;

(6) Irrationality in failing to place weight on relevant COI and instead placed weight on irrelevant information;

(7) Irrationality in failing to consider that there is a consistent system of human rights violations in Pakistan;

(8) Irrationality in failing to consider if state protection exists in Pakistan;

(9) Procedural impropriety in failing to call for psychological and/or psychiatric reports or evaluations;

(10) Procedural impropriety in applying the incorrect standard of proof; and

(11) No proper basis for considering that internal relocation was available to the Applicant.

12.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or what relevancy was state acquiescence to his case, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or how did the Adjudicator apply the incorrect standard of proof. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, nor would they be relevant to his BOR 2 Claim when the basis of his claim even on his own case simply did not engage the BOR 2 ground, while the dealing of his appeal before an adjudicator who was a different person from the interviewing officer in his screening process before the Director was actually a safeguard for fairness in the second-tier process of his claim by the Board of which I fail to see how he could in any way be prejudiced or adversely affected. As such I do not find any of his grounds reasonably arguable 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 44 - 61 in its first decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and having rightly rejected the credibility of his claim in its first decision, there is simply no basis for the Applicant to challenge the Board’s second decision regarding his BOR 2 Claim when he also failed to submit any new evidence or information which may assist or advance his claim. As such and in the absence of any error of law or procedural unfairness in his process before the Board or in either of its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.  

15.  Furthermore, the fact is that it has been established by the Director in his first 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 under any of the applicable grounds: 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 any of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim under all the applicable grounds.

17.  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