HUSSAIN SABAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 364/2019

[2022] HKCFI 1310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 364 of 2019

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 3 September 2011 and was arrested by the police on 5 September 2011.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his uncle over a land dispute in their home district, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Sarala, Tehsil Kharian, District Gujrat, Pakistan where he and his family resided in a house built on a piece of land owned by his father. After leaving school, the Applicant married his wife, and ran his own business selling artificial jewellery in District Mir Pur, Azad Kashmir.

3.  Upon the passing of his father, the Applicant’s uncle in about 2008 offered to purchase the land from the Applicant’s family, but when the Applicant and his family refused, his uncle started to make threats against them, and demanded that they vacate the land, and after several heated confrontations between them during which the Applicant was beaten by his uncle’s sons and followers, his family eventually abandoned the land and relocated to Azad Kashmir to avoid further threats from his uncle, while the Applicant returned to Mir Pur to run his business.

4.  However, one day in June 2011 in Mir Pur the Applicant was again threatened and assaulted by men sent by his uncle, and as he felt it was no longer safe to remain in Pakistan, he therefore fled to Islamabad, and on 17 August 2011 he departed for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 7 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 25 September 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

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 his uncle and followers upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was in any event a private land dispute between the two families 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 202 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 he had stayed before without incidents and where it would be difficult if not impossible for his uncle to locate him.

7.  On 6 October 2017 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 20 November 2018 before the Board during which he gave further evidence and also answered questions raised of his claim by the Adjudicator for the Board. On 8 February 2019 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 vague and inconsistent as to his claim of land dispute between his family and his uncle. that he had also exaggerated his fear of harm from his uncle having conceded and confirmed in his evidence that his family had since abandoned the land in dispute and left the village to settle elsewhere in Pakistan without any further threats from his uncle who has since taken possession of the land that it is not accepted that there would still be any issue between the two families over the land, or that the Applicant would still face any threats or harm from his uncle upon his return to Pakistan that it concluded that his claim for non-refoulement protection failed on all the applicable grounds.

9.  On 11 February 2019 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 stated that he is not satisfied with the decision because his life is still in danger in his home country 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.

10.  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.

11.  Furthermore, 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 which 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.

12.  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.

13.  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