JAMI ABDUL SATTAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 401/2019

[2024] HKCFI 660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 401 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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of Pakistan who entered Hong Kong illegally on 20 January 2015 and was arrested by police on 2 February 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 uncle over some property dispute in their home district. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Challah Po Panjeri, District Bhimber, Pakistan. After leaving school he worked as a policeman in his home district, got married and raised a family a daughter residing with his mother and other siblings in the family home owned by his father.

3.  One day in early May 2014 his paternal uncle came to his home and claimed that his father had prior to his death in 2006 sold the property to his uncle, and hence his uncle now demanded that the Applicant’s mother and her family to vacate the property and to hand it over to him, and when his mother refused, his uncle became furious and made threats against her and her family before he left.

4.  About 2 weeks later his uncle retuned with some men and pointed a gun at the Applicant’s mother threatening to kill her if she still refused to hand over the property to him, and when the Applicant and his elder brother tried to intervene, his uncle struck the Applicant on the head with the butt of his pistol, and then shot his brother in the right thigh, and before leaving his uncle warned that next time if they still failed to vacate the property and hand it over to him, they would be killed.

5.  Thereafter the Applicant and his brother were taken to the hospital for medical treatment, but when the local police refused to take any action by treating the matter as a private dispute within their family which they should resolve amongst themselves, the Applicant and his family became fearful for their life and moved out of the property to take shelter in his aunt’s place in Sirai Alamgir whereupon his uncle then took over the property.

6.  However, as the Applicant still feared of further attack by his uncle, he therefore departed Pakistan in July 2014 for China, and from there he later sneaked into Hong Kong, and upon 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 15 February 2018 and attended screening interview before the Immigration Department with legal representation.

7.  By a Notice of Decision dated 19 March 2018 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 him being harmed or killed by his uncle and followers upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his uncle to seriously harm or kill him other than to force his family to give up the property and that after they did and that this uncle had since taken over the property that there is no further reason for his uncle to harm the Applicant, that in any event it was a private property dispute between them within their family 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 201 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 Lahore or Islamabad or Karachi where it would be difficult if not impossible for his uncle to locate him.

9.  On 28 March 2018 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 19 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 January 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim that it doubted his alleged property dispute with his uncle or his claimed fear of harm from his uncle that caused him to leave his home country to come to Hong Kong to seek protection, that on the basis of his own evidence given to the Board during his appeal hearing that he was in fact still residing in his family home up to the time when he departed Pakistan, that his mother and siblings have also remained in the property after his departure without ever being threatened or assaulted by his uncle as alleged, that his mother had ever made any report to the police against his uncle as there was nothing to report, and that his uncle had never taken over the property and is not living there and has never posted any threats to his family that it rejected the credibility of the Applicant’s claim in its entirety and concluded that there is no a real risk that he would face any of the proscribed forms of harm upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 12 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, by his written submissions dated 7 January 2022 he put forward the following grounds for his intended challenge:

(1)  That the Adjudicator failed to appreciate or give proper weight and importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(2)  That the Board failed to take the argument into account or to give sufficient weight to the fact that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as well as the politicians due to direct result of misconduct of the police officials that the state should be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in Pakistan would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case;

(4)  That the Board only relied on COI which suited its pre-conceived conclusion which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain high standard of fairness in failing to recognize that corruption and incompetency of the administration in Pakistan is still a very serious problem as reported by various human right organizations which stated testament to the Applicant’s assertions and as such the decision should be considered unreasonable in the scope of public law; and

(6)  That the Adjudicator failed to make sufficient inquiry before finalizing the determination without advising or giving sufficient opportunity for the Applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.

12.  The Applicant did not attend the scheduled hearing without explanation, and that these grounds are all just bare and vague assertions of the Applicant without any relevant or necessary details or particulars or elaborations as to how they would apply to his case or how did the Board failed to make proper inquiry or to properly assess the relevant COI or to allow the Applicant sufficient opportunity to provide his evidence in support of his claim or appeal, or what relevancy was state acquiescence to his claim, or what evidence is there that the Applicant had been tortured by the police or state law enforcement agencies or the politicians when the factual basis of even his own case that his claimed risk came only from his uncle over some property dispute within his family without any state or official involvement at all. As such I do not find any of these grounds reasonably arguable for his intended challenge, 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, nor do I find any merits in his intended application.

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.  In the Applicant’s case, the Board dismissed his claim essentially on its adverse findings on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 62 – 122 of its decision with the benefit of hearing him in his oral evidence and 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 findings of the Board.

15.  Furthermore, the fact is that it has also been correctly 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, 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.  Accordingly, as I am for the given reasons 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 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