KHAWAR ABBAS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1045/2018

[2021] HKCFI 1451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1045 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 45-year-old national of Pakistan who had travelled in and out of Hong Kong since 1997 with a false passport and was subsequently arrested by the police on 20 March 2007 for which he was convicted and sentenced to prison for 16 months, during which he raised a torture claim with the Immigration Department on the basis that if he returned to Pakistan he would be harmed or killed by a fellow villager over a land dispute, 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 Dhok Mian Meer, Chak Baqar Shah, Tehsil and District, Chakwal, Pakistan. After leaving school he worked in a drug store in his local village, and subsequently inherited a piece of land from his father.

3.  In 1996 Maqbool, a wealthy fellow villager with influences and political connections started to raise issue with the Applicant over the ownership of his land as Maqbool insisted that the land belonged to him and demanded the Applicant to hand over its possession, and when the Applicant refused, Maqbool sent his followers to threaten him, and later kidnapped the Applicant’s younger brother for ransom, of which the Applicant subsequently paid by selling his land to another person for his brother’s release.

4.  However, Maqbool became furious with the Applicant over his sale of the land to another person, and demanded that he re-acquired the land for him, and when the Applicant was unable to do so, Maqbool sent his men to beat him up and threatened to kill him next time, and so the Applicant became fearful for his life, and on 28 April 1997 he departed Pakistan for Hong Kong with a false passport and travelled between the two places until his arrest in Hong Kong in 2007 for using the false passport and for which he was subsequently sent to prison, during which he raised his torture claim, and after his claim was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 15 December 2016 with legal representation from the Duty Lawyer Service (“DLS”) but did not attend the scheduled screening interview before the Immigration Department for the alleged medical reason.     

5.  By a Notice of Decision dated 10 February 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Maqbool or his followers upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that his problem with Maqbool was a private land dispute between them 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”) shows that reasonable internal relocation alternatives are available in Pakistan with a large population of 201 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 parts of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for Maqbool or his men to locate him.

7.  On 22 February 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 6 April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 30 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found serious inconsistencies and discrepancies in the Applicant’s evidence as to his disputes with Maqbool over his land and his claimed threats from Maqbool even after the land had been sold in 1996, that even if true that after the Applicant had since left Pakistan for so many years that it doubted that Maqbool would still have any adverse interest in the Applicant upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds     

9.  On 8 June 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 as well as at the hearing of his application, he merely repeated his claim that his life would still be in danger in his home country and that he wants to remain in Hong Kong until his problem back home has been resolved but without putting forward any proper ground 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.  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 50 – 68 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 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 to challenge the finding of the Board.  

12.  Furthermore, the fact is that it has been 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 parts 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.     

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.

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