MUHAMMAD HUSSAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1272/2019

[2024] HKCFI 1352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1272 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 be refused.

Observations for the Applicant:

1.  The Applicant is a 80-year-old national of Pakistan who arrived in Hong Kong in January 1999 under a dependent visa sponsored by one of his sons who is a local resident and subject to annual renewal on certain conditions, but after it was last expired on 30 November 2004 and when his son withdrew his sponsorship, the Applicant did not depart and instead overstayed in Hong Kong, and was arrested by police almost 7 years later on 19 September 2011. After he was referred to the Immigration Department for investigation, the Applicant raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by the family of the victim murdered by his cousin for assisting his cousin by bribing the judge to obtain a lighter sentence for his cousin. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born in Mohalla Ghulam Haider, Juttwali Gali Gujranwala, Punjab, Pakistan, and was raised in a village in Vehari, Punjab. After leaving school he worked as a farmer and then a construction worker, married his wife and raised a family with 6 children in his home village.

3.  In 1994 his cousin who was also a farmer in the same village had a land dispute with his neighbour, and on one occasion during their fight his cousin killed the neighbour, and for which his cousin was subsequently convicted by the court and was given a life imprisonment.

4.  At his cousin’s request the Applicant hired a lawyer for his cousin to make an appeal to the higher court, and on the lawyer’s advice the Applicant offered a bribe to the appeal judge that his cousin’s imprisonment was subsequently reduced to 12 ½ years, and upon his subsequent discharge from prison his cousin then left the country for Dubai.

5.  In 1995 when the Applicant was residing with one of his children in Lahore, he was told by a friend that the family of the murdered victim had found out about the bribe offered to the appeal judge and were furious with the Applicant for helping his cousin to obtain the much lighter sentence, and swore to kill the Applicant in revenge.

6.  As a result the Applicant became fearful for his life, and with the assistance of one of his sons who was a resident in Hong Kong, he departed Pakistan in January 1999 for Hong Kong under his son’s dependent visa subject to annual renewal, but upon its last expiration in November 2004, his son withdrew his sponsorship after a heated quarrel between them, the Applicant failed to depart and instead overstayed in Hong Kong, and upon his subsequent arrest in September 2011, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 May 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 22 December 2014 the Director of Immigration (“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”).

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 the family of the murdered victim 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 them to harm or kill him or even any threats directly made to him other than some hearsay of almost 20 years ago, that in any event it was a private 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 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 to move to other areas of the country away from his home district in large cities such as Lahore where he had stayed before with his family without any incidents and where it would be difficult if not impossible for anyone to locate him.

9.  On 2 January 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not hold any oral hearing and proceeded to deal with the appeal in his absence and on papers, and on 7 November 2016 the Board dismissed his appeal and also confirmed the Director’s decision.

10.  In its decision the Board accepted the Applicant’s account of events occurred in Pakistan prior to his departure of the country for Hong Kong in 1999 but found no evidence of any intention of the family of the murdered victim to harm or kill the Applicant or even to make any threats directly against him other than some hearsay and let alone inflicting any ill-treatment on him, and that in any event even if such threats or risk were real that it arose from some private personal dispute between them which occurred more than 20 years ago and without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan if resorted to as well as reasonable internal relocation alternatives for him to move safely 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.

11.  Meanwhile on 9 January 2017 the Director on his own initiative in writing invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any reply or response from him, the Director by a Notice of Further Decision dated 3 February 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

12.  The Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which he attended an oral hearing on 30 January 2019 before the Board during which he gave oral evidence and answered questions raised of his claim by the same Adjudicator for the Board. On 22 March 2019 his appeal was again dismissed by the Board which also confirmed the Further Decision of the Director.

13.  In this decision the Board considered again the factual basis of the Applicant’s case as stated for his claim as well as all the documents and additional information submitted by him and the issues raised together with his oral evidence given in his appeal hearing before the Board and the COI relevant to his claim, and found that the Applicant had failed to substantiate a case under the ground of risk of life under BOR 2 Risk and that his claim even on the factual basis of his own case simply did not engage the BOR 2 ground on its limited scope.

14.  On 10 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board as regard his BOR 2 Claim, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just made the barest of assertions that it was procedurally unfair for the Board to reject his appeal without making full and proper inquiries into the relevant COI but failed to provide any relevant or necessary details or elaborations as to how it was so, nor was he able to do so at the hearing of his application. 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.

15.  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.

16.  In the Applicant’s case, the Board rejected his BOR 2 claim essentially on its finding on the factual basis of even his own case that it simply did not engage the BOR 2 ground due to its limited scope for the thorough and detailed analysis and reasoning set out in paragraphs 10 – 20 of its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim before the same 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.

17.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective earlier decisions 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, 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 under all the applicable grounds.

19.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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