HUSSAIN CHAUDHRY MAZHAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 2084/2018

[2022] HKCFI 2366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2084 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of 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 be refused.

Observations for the Applicant:

1.  The Applicant is a 60-year-old national of Pakistan who entered Hong Kong illegally on 12 May 2016 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 neighbours who were supporters of the political party Pakistan Muslim League (Q) (“PML(Q)”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Marghzar Colony, Gujrat, Punjab, Pakistan. After leaving school he worked in construction business, got married and raised a family with 3 children in his home district, and supported PML(N) regularly attended their local meetings and rallies.

3.  His neighbor Hanif and son were however supporters of rival PML(Q) and frequently harassed and threatened the Applicant to quit his party and to join theirs or else he should leave Gujrat.

4.  According to the Applicant, PML(Q) won the general election in 2008 and became the ruling party of the government, while his neighbor Hanif who also became the Nazim of their home village started to behave more aggressive and hostile towards the Applicant, and one evening he came with his followers to the Applicant’s home and fired gun shots inside the house threatening to kill the Applicant and to burn down his house. As a result the Applicant moved his family to Lahore in June 2008 and later to Karachi to avoid further threats from Hanif until 2013 after PML(N) won the general election and became the ruling party, and when Hanif offered to make peace with him that the Applicant returned to reside in his home village with his family without further incidents for the next 2 years.

5.  However, one day in November 2015 the Applicant witnessed one of his friends being shot and killed by Hanif’s men, and gave a witness statement to the police. Thereafter Hanif demanded the Applicant to withdraw his statement and not to assist the police about the shooting or else he would be killed, and when the Applicant refused, one day in early 2016 he was abducted by some unknown men and taken to an abandoned building where he was beaten with a baseball bat and with his legs punctured by a nail that he lost consciousness, and was subsequently taken to the hospital for medical treatments.

6.  Upon his discharge form the hospital, the Applicant suspected that those men were sent by Hanif to teach him a lesson, and as he was fearful for his life, he therefore departed Pakistan on 28 April 2016 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 11 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 18 August 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”).

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 he would be harmed or killed by Hanif and his men upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that his problem with Hanif was a private personal dispute 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 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 and Karachi where he had stayed before without incidents and where it would be difficult if not impossible for the Hanif and his men to locate him.

9.  On 25 August 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 17 July 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 21 September 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found serious inconsistencies and discrepancies in the Applicant’s evidence between those given earlier to the Director and those at his appeal hearing before the Board that it doubted the credibility of his claim of fear of harm from Hanif or over any political or other disputes between them for his departure of his home country for Hong Kong, and that relevant COI show that it was the Applicant’s supported party PML(N) and not Hanif’s supported party PML(Q)) that won the election or became the ruling party at the material periods in the Applicant’s home district during the Applicant’s alleged chain of events which further undermined his credibility which it concluded as wholly unreliable and unacceptable that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 2 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 he just stated that “there is some error in law” in the decision in which the Adjudicator just relied on COI information and the evidence and facts previously given while ignoring his real situation but without providing any details or particulars or elaboration as to how it was 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.

12.  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.

13.  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 – 52 of its decision with the benefit of having heard him in his oral evidence and his answers raised of his claim during his appeal hearing, and in the absence of any error of law or facts 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 findings of the Board.

14.  Furthermore, the fact is that it has also been correctly 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.

15.  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.

16.  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