BABAR IMRAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 3299/2019

[2024] HKCFI 741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3299 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 the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 47-year-old national of Pakistan who last arrived in Hong Kong on 11 February 2003 as a visitor with permission to remain as such up to 13 February 2003 when he did not depart and instead overstayed, and was arrested by police more than 2 years later on 6 August 2005 for using an identity card relating to another person and for undertaking unauthorized employment, for which he was subsequently convicted and sentenced to prison for 8 months, during which he raised a torture claim to the Immigration Department on the basis that if he returned to Pakistan he would be harmed or killed by a local gangster over some personal vendetta between the gangster and the Applicant’s elder brother.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mohallah, Dhoke Feroz, Chakwal, Pakistan. After leaving school he ran his own grocery store in his home district, got married and raised a family with 5 children.

3.  One of the regular customers of his store was a man named Gul who ran a car trading business in the neighbourhood but was also known to be a gangster involved in trafficking dangerous drugs.  One day in 2001 Gul told the Applicant that he had a car for sale, and as the Applicant and his elder brother Liaquat were interested, they went with Gul together with his men to Peshawar to test drive the car.

4.  Afterwards the Applicant and his brother proposed to buy the car and offered to pay part of the purchase price right there with the balance to follow within one month, and while they were discussing the terms of the deal in a coffee shop, the Applicant went to use the toilet, but when he returned to the he saw his brother trying to stop Gul and his men from leaving with their money, and when Gul and his men knocked Liaquat down to the ground and were ready to get away in the car, Liaquat pulled out his pistol and fired several shots at the car and hit one of Gul’s men, but Gul and his men were still able to drive away.

5.  The Applicant and Liaquat then returned to their home district but were unable to find Gul to get back their money, but for the next several years Gul kept calling the Liaquat on the phone threatening to kill him in revenge for shooting dead one of his men in the earlier incident.

6.  In late 2002 the Applicant started travelling back and forth to China and also made various side trips to Hong Kong, and on his last trip to Hong Kong on 11 February 2003, he did not thereafter depart and had overstayed in Hong Kong since 14 February 2003.

7.  On 22 November 2004 the Applicant was informed by his family in Pakistan that Liaquat had been murdered by Gul, and that he was warned not to return to Pakistan for fear that the same fate might occur to him.

8.  On 6 August 2005 the Applicant was arrested by police for using an identity card relating to another person and undertaking unauthorized employment, for which he was subsequently convicted and sentenced to prison for 8 months, during which he raised a torture claim to the Immigration Department, and after it was rejected he then sought non-refoulement protection, for which he provided his supplementary submissions and attended screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).

9.  While released on recognizance pending the determination of his claim, the Applicant in January 2011 married a local resident upon the passing of his first wife in Pakistan, and formed a family in Hong Kong, but his application for a dependent visa was refused by the Immigration Department in July 2012.

10.  On 5 April 2015 the Applicant was again arrested by police for possession of dangerous drugs for which he was subsequently convicted and sentenced to prison for 4 months.               

11.  By a Notice of Decision dated 26 April 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining grounds other than risk of torture 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”).

12.  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 Gul and his men upon his return to Pakistan as low due to the absence of any past ill-treatment from them, that there is no evidence of any intention of Gul to harm or kill him given that it was the Applicant’s elder brother Liaquat who shot Gul’s man and that Gul had never made any threats against the Applicant, and as Gul had subsequently taken his revenge by subsequently killing Liaquat that it is not accepted that he would still have any adverse interest in the Applicant especially after all these years since he had left the country in 2002, that in any event it was a private personal dispute between the 2 of 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”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 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 areas of the country away from his home district in large cities such as Karachi where it would be difficult if not impossible for Gul to locate him.

13.  On 10 May 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 31 May 2018 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 6 August 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

14.  In its decision the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it did not consider him to be a witness of truth and that he had fabricated claims in relation to Gul’s acquaintance being killed by the Applicant’s brother and/or his brother being threatened or subsequently murdered by Gul in revenge that it doubted the Applicant’s claim of fear of harm from Gul that caused him to leave his country to seek non-refoulement protection in Hong Kong, that even if his claimed risk were real that on his own case that there is no evidence or reason for Gul to have any intention to harm or kill him due to what would have been essentially a personal vendetta between Gul and the Applicant’s brother Liaquat which would have been settled after Gul had subsequently killed Liaquat that there is no further reason for him to go after the Applicant as evidenced by the fact that no attempt at all had ever been made against the Applicant prior to his departure of Pakistan in 2002 or that after all these years that there would still be any adverse interest in him, and that in any event in the absence of any official involvement that it agreed with the Director’s findings that state or police protection would be available to the Applicant if resorted to upon his return to Pakistan if resorted to as well as reasonable internal relocation to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

15.  On 5 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in his Form or his supporting affirmation of the same date in which he just made bare assertions that the reasons provided by the Adjudicator were not “strong” and that it was unreasonable for the Board to refuse his claim but without providing any relevant details or elaboration as to how it was so, nor was he able to do so at the hearing of his application other than just stating that he was not feeling well and that he needed more time to obtain further evidence in support of his application, but which was not accepted by the Court given the fact that he had been in Hong Kong for some 20 years to do so and with legal representation up to the time of his appeal before the Board in 2019.  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.    

16.  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.

17.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in paragraphs 92 – 124 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 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.

18.  As for the Applicant’s argument of having married a Hong Kong resident and formed a family in Hong Kong for many years that it would not be fair or just that he would be forced to live apart from his family if deported from Hong Kong, the Board was correct to reject this argument by referring to the Court of Final Appeal’s decision in Comilang and Ors v Director of Immigration [2019] FACV 9 of 2018 and Luis & Ors v Director of Immigration [2019] FACV 10 of 2018, 4 April 2019, HKCFA 10, which held that a person who has no right to enter and remain in Hong Kong is not entitled in law to rely on the rights of his wife or children to enable him to do so.   

19.  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 even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also agreed and 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.                

20.  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.

21.  In the premises, for the given reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly refuse to grant leave and dismiss 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