MEHMOOD ZAFAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2382/2018

[2022] HKCFI 1662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2382 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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of Pakistan who entered Hong Kong illegally on 26 May 2015 and was arrested by police on 27 May 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 maternal aunt over her land dispute with the Applicant’s mother. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mohala Qadar Colony, Jalal Pur Jattan, Gurjat, Pakistan where his maternal grandfather left behind a piece of land after his passing years ago without proper distribution but which had been left under the control of the Applicant’s aunt, and for years his mother had approached her for a fair distribution thereof, but she was invariably rejected with threats from his aunt, and on some occasions his mother was even assaulted by the husband and sons of his aunt.

3.  On one occasion in 2015 when he accompanied his brother to again demand his aunt for a fair distribution of the land, the Applicant was attacked by his aunt’s husband and sons with wooden sticks that he suffered injuries all over his body and had to be taken to the hospital for medical treatments.

4.  After the incident the Applicant filed a court case against the aunt and her family, which caused her husband to threaten to kill him unless he withdrew his action, and shortly thereafter one night someone fired several gun shots at the Applicant’s home but without hurting anyone.   

5.  Believing that those gun shots were meant to kill him, the Applicant became fearful for his life, and so on 5 May 2015 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 27 October 2017 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”).

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 his aunt and family upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there was no reliable evidence of any real intention of his aunt and family to seriously harm or kill the Applicant other than to scare him off, that it was in any event a private land dispute between two families in their home village 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 adult with working experience to move to other part of Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for his aunt or her family to locate him.

8.  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 26 April 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 August 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s claim of a dispute between his mother and his aunt over some land left behind by his grandfather in their home village upon his passing years ago, but found no reliable evidence of any real intention of his aunt to seriously harm or kill the Applicant given his own admission that his mother who would have been the rightful and legal claimant of the land has remained living safely in her home village without any harm from his aunt or her family that it is not accepted that the Applicant would face any real risk of harm from them upon his return to Pakistan, and that in any event it was a private land dispute within the family without any official involvement that state/police protection would be available to the Applicant as well as reasonable internal relocation for him to move safely to other areas away from his home village without any risk of being located by his aunt or her family that his claim for non-refoulement protection failed on all applicable grounds. 

10.  On 29 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 in his supporting affirmation of the same date he put forward various grounds which can be summarized as follows for his intended challenge:

(1) that they determined his case unfairly in assessing the ill-treatment inflicted upon him did not attain a minimum level of severity which was fundamentally wrong and biased;

(2) that they failed to properly recognize that police in Pakistan are heavily corrupt that state protection is simply not available to the Applicant upon his return to his home country;

(3) that both the Director and the Adjudicator failed to consider the Applicant’s membership of a particular social group being people with land dispute with their relatives but could not seek revenue of justice in Pakistan;

(4) that they determined his claim unfairly when throughout the procedure there had been no translation provided to him by the DLS, nor was there assistance provided to him in completing his Notice of Appeal or to help him to understand the decision of eth Board;

(5) that the Director wrongly exercised his case management power by using a biased and formulaic approach in coming to the conclusion that state protection would be available to the Applicant which is in fact contrary to the available COI which the Director had failed to conduct properly that such cherry picking approach is highly unfair and prejudicial; and

(6) that the Board’s decision was never explained or translated to the Applicant that he was deprived of the opportunity to make a proper challenge which is a total failure to apply high standards of fairness in treating his case.  

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 would apply to his case or how the Director or the Adjudicator had erred in their decisions, or in what way were they wrong in relying on relevant COI in their assessment of the availability of state protection or internal relocation to the Applicant upon his return to Pakistan. None of these assertions were properly elaborated or presented with any or sufficient particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

12.  As for his complaint of not being provided with legal assistance or representation for his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration, HCAL 51/2007 prescribed that non-refoulement claimant must have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

13.  The Applicant already had the benefit of legal representation from DLS in presenting his claim to the Director, and was able to testify and make representation in his appeal before the Board and to answer questions raised of his claim without any difficulty, while in his present application he clearly also had legal assistance in presenting his arguments and submissions in his supporting affirmation, but for which he failed to attend the hearing of his application without any explanation. As such I do not find anything amiss arising from the fact that he was without legal representation in his appeal before the Board, nor do I find any merits in this complaint of his for his intended application     

14.  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.

15.  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.            

16.  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.

17.  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