SIDDIQUE SHAHID v. TORTURE CLAIMS APPEAL BOARD

HCAL 3621/2019

[2021] HKCFI 2028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3621 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Pakistan who entered Hong Kong illegally on 28 October 2007 and was arrested by police on 29 October 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by his former business partner over some business dispute, and after it was rejected by both the Director of Immigration (“Director”) and the Torture Claims Appeal Board (“Board”), he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Gujar Khan, Rawalpindi, Punjab, Pakistan. After leaving school he worked as a farmer in his home district, and in 1995 he joined the property investment business of his neighbor Tariq as a partner, but later in 2004 he left their partnership after some dispute over his commission payments, and in 2005 he set up his own property investment business which competed with Tariq for business, for which Tariq resented very much and on one occasion came with several men to assault him that he was later taken to the hospital for medical treatment.   

3.  After the incident, the Applicant became fearful for his life and fled to Rawalpindi, and later moved to Karachi and Faisalabad before departing Pakistan on 15 October 2007 for China, and from there he later sneaked into Hong Kong and raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 29 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 30 November 2018 the Director rejected the Applicant’s claim on all the remaining applicable grounds other than his torture risk including 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”).

5.  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 Tariq and his men upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was a private personal 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 207 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 Karachi where it would be difficult if not impossible for Tariq to locate him.

6.  The Applicant again lodged an appeal to the Board against the Director’s decision, and for which he attended 2 oral hearings on 14 May 2019 and 2 September 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 15 November 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board accepted the Applicant’s claim of having a private dispute with his former business partner Tariq but found in the absence of any official involvement that state or 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 by Tariq that his claim for non-refoulement protection failed on all applicable grounds.

8.  On 4 December 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision which also confirmed the Director’s decision, and put forward the following grounds for his intended challenge:

(1)  that the Director and the Adjudicator of the Appeal Board reached their decisions wrongly in assessing his non-refoulement claim and that they were not reasonable or fair as required by the Wednesbury test;

(2)  that the Director failed to appreciate or give proper importance or weight to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim as he was tortured at the behest of the state law enforcement agencies for which the state should be rendered liable to him by cause of the state and its public officials in failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  that the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(4)  that the Director had listed relevant COI which supported the aversions that the police in the Applicant’s country would not be able to protect but failed to consider or give enough weight to such evidence and ruled otherwise against his case;

(5)  that the Director failed to take into account or place sufficient weight to the argument that the corruption and incompetency of the administration in the Applicant’s country is still a very serious problem when various human rights organizations have complied reports on such matters which stated testament to the Applicant’s assertions;

(6)  that the Director failed to attain high standard of fairness required by the Wednesbury test in the decision which should be considered unreasonably in the scope of public law;

(7)  that the Adjudicator was procedurally improper and/or unfair when assessing whether to accept the Applicant’s explanation and unreasonably required him to respond to questions that he was not in a position to offer any response and also failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s country thus making the persecution effectively persecution by the state; and

(8)  that the Adjudicator made a ruling to dismiss his appeal based on findings which ought to have allowed and thus the decision is irrational.

9.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in their decisions, and in fact they all appear to have been just copied from the application of some other applicant for non-refoulement claim but based on entirely different facts and which are wholly irrelevant to the Applicant’s own claim, and that in any event none of these assertions were elaborated or presented with any particulars or specifics by the Applicant that they are not reasonably arguable for his intended application.

10.  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.

11.  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.

12.  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.

13.  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.

14.  Furthermore, the Applicant on 15 April 2021 filed an affirmation in support of his request to withdraw his application and to discontinue his case by stating that his situation in his home country has been sorted, that he is able to return to his family, and that he no longer needs to seek asylum in Hong Kong.

15.  In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that the basis for his non-refoulement claim no longer exist, I accede to his request and accordingly 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