MUHAMMAD NABEEL v. TORTURE CLAIMS APPEAL BOARD

HCAL 693/2018

[2020] HKCFI 2241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 693 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 29-year-old national of Pakistan who entered Hong Kong illegally in early April 2017 and was arrested by customs and excise officer on 20 April 2017 for dealing with dutiable cigarettes for which he was subsequently convicted and sentenced to prison for 10 months.  Upon his release and was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle over a land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Kot Meraj, Tehsil and District Sialkot, Punjab, Pakistan.  After leaving school he assisted his father farming on his father’s farmland inherited from his grandfather.

3.  Although his paternal uncle also inherited his share of the land in the village, his uncle coveted the farmland of the Applicant’s father, and after learning that the Applicant’s father had subsequently transferred the land to the Applicant, his uncle demanded that the Applicant should hand over the land to him or else he would be killed, and when the Applicant refused, his uncle on one occasion sent his followers to attack him with wooden sticks and other weapons that the Applicant suffered cuts and bruises and was knocked unconscious.

4.  After his discharge from the hospital, the Applicant reported the matter to the local police but was advised to resolve his dispute privately with his uncle, and fearing of further attacks from his uncle, the Applicant therefore fled to Lahore, but when he was harassed and threatened by unknown men whom he suspected were sent by his uncle, he felt it was no longer safe to remain in Pakistan, and so in early 2017 he departed 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 on 6 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 22 November 2017 the Director of Immigration (“the 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”).

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 or his men upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was a private family 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 show that reasonable internal relocation alternatives are available in Pakistan with a large population of 205 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 young man with working experience to move to other part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for his uncle and his men to locate him.

7.  On 1 December 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 12 February 2018 before the Board during which he declined to give any oral evidence or to answer any questions put to him by the adjudicator for the Board.  On 26 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found in the absence of any oral evidence or answers to questions raised of his claim from the Applicant that he failed to show from the materials and information before the Board the underlying basis to bring his claim within the ambit of any of the applicable risks, or that he is unable or unwilling due to his alleged fear to avail himself of the protection of his country of nationality, or anything to indicate if refouled that he would not be afforded the requisite level of protection from the government of Pakistan, and concluded that the Applicant had failed to show any ground that he would be subject to a real risk of harm from his uncle or anyone upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 20 April 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 claimed that the Board’s decision is unfair and unreasonable without providing any particulars or elaborations why it was so or 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 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 been established by the Director in his decision that the risk of harm in the Applicant’s claim 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