AHMAD FAHEEM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 801/2017

[2019] HKCFI 1497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 801 of 2017

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 present / absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 31-year-old national of Pakistan who entered Hong Kong illegally on 3 December 2013 and was arrested by police on 19 January 2014.  After being referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by two brothers SZ and AB over a land dispute.  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Mohala, Jasrota, Tehsil and District Jhelum, Punjab, Pakistan where his parents and siblings still reside.  After leaving school he ran his own grocery store in Tehsil and District Jhelum.

3.  In about June 2013 his wealthy neighbor SZ proposed to purchase a piece of land in the village from the applicant’s three maternal uncles but when he was rejected he turned very hostile and threatened to get the land by whatever means.

4.  One month later SZ came with several men to one of the uncles’ home and attack him with wooden sticks, and when the applicant came to his uncle’s help, he was also attacked by SZ which caused an injury to his nose, and before SZ left he threatened to kill the applicant.

5.  After the assault the applicant reported the matter to the local police but instead he was arrested on the following day as SZ had made a false claim against him for assaulting him earlier, and although he was eventually released by the police, he remained concern for his own safety due to SZ’s influence in the village, and took shelter at his cousin’s home in Dadhial, Mirpur for more than a week before returning home and re-opened his store for business.

6.  Eventually the respective families were able to resolve their dispute and the police agreed to close the case, but in September 2013 the applicant got into a quarrel with SZ’s brother AB over some purchases at his store, and later on the same evening when the applicant was tipped off by his neighbor that AB was returning with several men to his shop, he closed his store and ran home.

7.  However, on the following morning SZ, AB and several other men came to the applicant’s store and attacked him with wooden sticks until some of the neighbors intervened and the applicant managed to escape without any serious injuries.

8.  After the second assault the applicant suspected that SZ was still unhappy with his family over the failed purchase of the land and was making excuses to harm him, and as he felt that it was no longer safe to remain in Pakistan, he therefore departed for China on 18 November 2013, and from there he sneaked into Hong Kong on 3 December 2013, and upon his subsequent arrest he lodged his non-refoulement claim for which he completed a Non-refoulement Claim Form on 15 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  By a Notice of Decision dated 5 May 2016 the Director of Immigration (“the 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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”).

10.  In his decision the Director assessed the level of risk of harm from SZ and/or AB upon the applicant’s return to Pakistan as low after taking into account of all the relevant circumstances of his claim including the fact that he does not have any title or interest in his uncles’ land and hence no reason for SZ to target him over the land dispute, that the dispute was of private and personal nature 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 spread across a vast territory that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other area away from his home district that it would be difficult if not impossible for SZ or AB to locate him.

11.  By a Notice of Further Decision dated 28 April 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation for him to submit any 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”).

12.  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, which appeal he filed 17 May 2016, and for which he attended an oral hearing on 10 July 2017 before the Board but declined to testify or answer questions in respect of his claim from the adjudicator for the Board.  On 5 September 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.  In its decision the Board found in the absence of oral evidence from the applicant that it was unable to determine whether there is any real risk or substantial grounds for believing that he will suffer the harm he claims to fear if he is refouled to Pakistan, as there was no direct material from which to properly make findings as to his credibility or against the findings in the Director’s decision, and concluded that in the circumstances his claim for non-refoulement protection has failed on all applicable grounds. 

14.  On 24 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in the Form, nor did he request for any oral hearing, and in his supporting affirmation of the same date he merely deposed that:

“ … I like to tell my true situation of my case and my reason for this application to court. The petition teams appeal (security bureau) never gave me the time to submit my supporting document too, still I have problem to me and for my family by powerful people and my brother was beaten by them and try to kill but he safe his life and taken the treatment from private hospital. I will submit his discharge certificate and other document as soon as possibkle and I attach my exhibit 91) 1 page with this affirmation to you.” [sic]

15.  The one page of exhibit mentioned in his affirmation is a copy of the letter dated 5 September 2017 from the Board informing him of its decision in dismissing his appeal.  Up to now he has not produced or submitted any further documents or representations mentioned in his affirmation which was made some 10 months ago.  As such I do not find any substance or merit in the applicant’s complaint nor any reasonably arguable ground put forward by him for his intended challenge in the affirmation or elsewhere in the file.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, that the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their roles as primary decision makers in the absence of any legal error being identified by an applicant: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

17.  Furthermore, the fact that it has been established 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 area of Pakistan, there is 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