HUSSAIN ASHFAQ v. TORTURE CLAIMS APPEAL BOARD

HCAL 791/2018

[2021] HKCFI 1076

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 791 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 (counsel for) the Applicant in open court / the Applicant being absent 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 repeatedly entered Hong Kong illegally on various occasions under various alias from the 1990s, and on the last occasion on 16 March 2006 he sneaked in from China, and after his refugee application was rejected by UNHCR in 2010, he surrendered to the Immigration Department in 2015 and raised a non-refoulement claim with the Immigration Department on the basis that if he returned to Pakistan he would be harmed or killed by the local gangsters for refusing to pay extortion money and/or by members of the political party Muttahida Quami Movement (“MQM”) over certain dispute. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Toneen, Chowki, Samahni Tehsil, Bhimber District, Azad Kashmir Province, Pakistan. After leaving school he operated a garment business in Mirpur City in Azad Kashmir before moving his business to Kharada in Karachi.

3.  In 2003 he befriended some local MQM members while running his business in Karachi, and started to support their party.

4.  One day in late 2004 some local gangsters armed with guns came into the Applicant’s shop demanding for extortion money which the Applicant did not dare refuse and just handed over the money, but when those gangsters kept coming back for more money, the Applicant sought help from the MQM people who then on 20 July 2005 sent some of their members armed with guns to ambush those gagsters in the Applicant’s shop which led to a gun battle between the two groups and resulted in the death of one of the gangsters.

5.  After the police arrived to make their investigation, the Applicant gave them a report of what happened between the gangsters and the MQM people, but shortly thereafter he started to receive threatening phone calls from both the gangsters who swore to take revenge against him for the death of one of their men, while the MQM people also blamed him for disclosing their involvement in the incident to the police.    

6.  When the threatening calls persisted, the Applicant became fearful for his life, and so on 6 March 2006 he departed Pakistan for China, and from there he later sneaked into Hong Kong and eventually 9 years later raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.  By a Notice of Decision dated 23 December 2016 the Director of Immigration (“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”).

8.  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 those local gangsters or the MQM people upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that after all these years that it is doubtful that they would still have any adverse interest in him, that in the absence of 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 196 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 Faisalabad or Lahore where it would be difficult if not impossible for those local gangsters or the MQM people to locate him.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 11 April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 27 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found the Applicant’s evidence as to his claim vague and unsubstantiated and with his credibility undermined by the fact that he failed to raise his claim upon arrival in Hong Kong until some 9 years later, and that in any event in the absence of any evidence of any official involvement in his claim that state/police protection would be available to him 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 that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 7 May 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 attached a copy of the decision without putting forward 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 procedural unfairness in his process before the Board or any error of law or irrationality in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis 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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.     

14.  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.

15.  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