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HCAL 2124/2018
[2022] HKCFI 2496
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2124 of 2018
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Khan Tahir |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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and
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The Applicant is a 49-year-old national of Pakistan who entered Hong Kong illegally on 8 January 2016 and was arrested by the 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 a relative and her lover for knowing about their adulterous affair. He was subsequently released on recognizance pending the determination of his claim.
2. The Applicant was born and raised in Village Ghorghushti, Tehsil Hazro, District Attock, Punjab, Pakistan. After leaving school he and his family moved to neighbouring Village Aldo in the same district where he worked as a machine operator.
3. One day while his relative Jabeen who was having an adulterous affair with a married man Abbasi in her home in Village Ghorghushti, but when their affair was discovered by Abbasi’s wife and children who then made a scene at Jabeen’s home and caused serious damage to it, and when the Applicant heard about the commotion, he also came and saw what happened.
4. As Jabeen was upset that the Applicant had found out about her affair, and together with Abbasi who was a doctor with political connections made a false claim to the police against the Applicant for damaging her home, for which the Applicant was later charged and was taken to the court for the trail, but was eventually acquitted by the court in December 2014.
5. However, as he was fearful that Jabeen and Abbasi would take further revenge against him, the Applicant fled to Hazara City, but later when he heard that they were looking for him everywhere, he felt it was no longer safe to remain in Pakistan, and so on 7 January 2016 he departed the country for China, and from there he 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 18 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
6. By a Notice of Decision dated 23 November 2016 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 took into account of all the relevant circumstances of the Applicant’s claim and found no substantial ground for believing that there will be any real risk of him being harmed or killed by Jabeen or Abbasi upon his return to Pakistan due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any intention of them to seriously harm or kill him, that it was in any event a private personal dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to Pakistan, 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 Islamabad where it would be difficult if not impossible for Jebeen or Abbasi or anyone else to locate him.
8. On 8 December 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing on 9 January 2018 before the Board without any explanation, and the Board proceeded to deal with his appeal in his absence and on papers. On 7 September 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.
9. In its decision the Board found on the basis of the material and information previously provided by the Applicant to the Director and available in the hearing bundle for his appeal before the Board that his claim of threats from Jabeen or Abbasi or anyone else was entirely his own speculation unsupported by any reliable evidence, and that in any event it was a private personal dispute between them without any official involvement that state/police protection would be available as well as a functional and competent legal and judicial system to deal fairly with any false charges brought against him upon his return to Pakistan, and with reasonable internal relocation available for him to move safely to other part 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.
10. On 4 October 2018 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 merely attached a copy of the decision and repeated his claim as before that his life is still in danger in his home country that he cannot return 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.
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. Furthermore, the fact is that it has been established by both the Director and the Board in their respective 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.
13. 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.
14. 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.
Dated the 12th day of August 2022
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(Chung Lai Fan, Christine)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 12th August 2022
Khan Tahir
Applicant’s ref. no.:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12th August 2022
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 5439/16/12/86/P1230
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1670/16 (formerly RBCZ 11680/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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