KHYBAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 2154/2018

[2020] HKCFI 2284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2154 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 32-year-old national of Pakistan who entered Hong Kong illegally on 1 July 2013 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his creditor over a loan dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Boota, Tehsil District Attock, Punjab, Pakistan.  After leaving school he moved to nearby Village Waisa where he ran a poultry business to make his living. 

3.  In 2008 his business was not doing well and so he borrowed a loan from a wealthy businessman Nadeem from neighbouring village with the loan repayable within 4 years without interest.

4.  However, in 2012 when the Applicant repaid the loan, Nadeem insisted that he should also pay the accumulated interest which led to a dispute that the Applicant eventually sought assistance from the village elders, and when the elders decided in favour of the Applicant, Nadeem was unhappy and refused to accept their decision.

5.  One day in March 2013 the Applicant’s poultry farm was suddenly burned down by some unknown men, and then in April 2013 the Applicant was twice attacked by unknown men that he had to be hospitalized, but when the police was unable to find the culprits, and as the Applicant suspected that Nadeem was behind all these incidents, he therefore felt it was no longer safe to remain in Pakistan, and so on 23 June 2013 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 (“NCF”) on 19 June 2015 but failed to attend any screening interview due to alleged health reasons which was subsequently substituted by providing answers to a list of questions raised by the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 15 October 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 assessed the level of risk of harm from Nadeem upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him or his men, that there was no reliable evidence to connect those incidents of attacks on the Applicant to Nadeem, that in any event his problem with Nadeem was a private monetary 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”) 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 part of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for Nadeem to locate him.

8.  By a Notice of Further Decision dated 1 December 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 29 October 2015, and for which he attended an oral hearing on 28 February 2017 before the Board during which he however declined to give any evidence and to answer question put to him by the adjudicator for the Board.  On 13 August 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found in the absence of any oral evidence from the Applicant at his appeal hearing to clarify or explain the various discrepancies in his claim disclosed in the materials and information earlier submitted to the Director that it was not satisfied that he had been able to establish his claim, but found in any event that in the absence of any evidence of any official involvement that state/police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located by Nadeem or his men that his claim for non-refoulement protection failed on all applicable grounds.   

11.  On 8 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) that the adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) that the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) that the Board significantly relied on the source of news not officially recognized or was simply hearsay or outdated resulting in groundless speculations that it would be safe for the Applicant to return to his country of origin; and

(6) procedural unfairness in that the hearing bundle was given to the Applicant only a few days before his appeal hearing with the majority of documents in the bundle in English thereby giving him insufficient time to prepare for the hearing and due to his limited English and being unrepresented that he was unable to seek interpretation assistance that he could afford.  

12.  These are however mostly 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 Board or the adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion in dealing with his appeal, or how did the adjudicator act in a procedurally unfair manner, or in what way was the Board’s decision unreasonable or irrational in the public law sense, or which relevant COI were unofficially recognized or hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

13.  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.

14.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

15.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his appeal hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

16.  Essentially the Board rejected his claim on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 42 – 61 of its decision and in view of his failure to give any oral evidence or 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.  

17.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

18.  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.

19.  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