HUNAIN LATIF ZADHA v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2089/2018

[2020] HKCFI 2246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2089 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 26-year-old national of Pakistan who entered Hong Kong illegally on 9 June 2015 and was arrested by police on 11 June 2015.  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 paternal uncle and cousins over a land dispute in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Nurpur Noon, District Sargodha, Punjab, Pakistan.  After leaving school he assisted his father in his farming on the farmland in their home village inherited from his grandfather.

3.  His paternal uncle and cousins however coveted his father’s land which had caused many conflicts between the two families, and one day in 2013 the Applicant was prevented by his cousins from working on the land who proceeded to beat him but he managed to escape from the scene to receive medical treatments in the local clinic, and later when he was again threatened by his cousins that they would shoot him with their pistols if he did not leave the village that he fled to Rawalpindi.

4.  However, later when he found that he was being followed by unknown men whom he suspected were sent by his uncle, he felt it was no longer safe to remain in Pakistan, and so on 22 May 2015 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 9 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  While released on recognizance pending determination of his claim, the Applicant was twice arrested by police for undertaking unauthorized employment and using a false instrument for which he was subsequently convicted and sentenced to prison for 18 months.      

6.  By a Notice of Decision dated 26 February 2018 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”).

7.  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 his perceived fear of harm from his uncle or cousins is real and foreseeable due to the low intensity and frequency of past ill-treatment from them, that his problems with them were private land disputes between their 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 204 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, Islamabad or Faisalabad where it would be difficult if not impossible for his uncle or cousins to locate him.

8.  On 5 March 2018 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 14 August 2018 before the Board during which he did not give any further evidence and declined to answer some of the questions raised of his claim by the adjudicator for the Board.  On 20 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found the Applicant’s claim vague, lack of details and implausible that it did not accept that he or his family were embroiled in any land dispute with his uncle or cousins or that he had experienced any problems or harm from his uncle or cousins as a result, and that it concluded that it was not satisfied that there would be any real risk that the Applicant would face any of the proscribed forms of harm should he return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 2 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim that they were no reasonable or fair;

(2) that the adjudicator failed to give the Applicant sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his claim;

(4) that the Director failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies as well as the politicians for which the state should be rendered liable to the Applicant by cause of the state and public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) that the Director failed to consider or give enough weight to those evidence in the listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect;

(6) that the Director failed to consider the fact that corruption and incompetency of the administration in the Applicant’s country were still very serious problems as reported by various human rights organization which stated testament to the Applicant’s assertion which was a clear case of unfair attitude shown by the Director which is enough to render his decision void; and

(7) that the Director failed to attain the high standard of fairness required by the Wednesbury test in his decision which should be considered unreasonable in the scope of public law.  

11.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decision, or in what way were their decisions unfair or unreasonable, or how did the adjudicator fail to give him sufficient time and opportunity to submit his relevant evidence for his claim or appeal, or in what way was state acquiescence relevant to his claim, or how did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standard of fairness in assessing his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, nor did he attend the scheduled hearing of his application without any explanation.  As such I do not find any of his grounds reasonably arguable 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 50 – 60 of its decision with the benefit of hearing him during his appeal hearing before the adjudicator, 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 to challenge the finding of the Board.  

14.  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.  

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