KHAN USMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1079/2020

[2024] HKCFI 1480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1079 OF 2020

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 44-year-old national of Pakistan who entered Hong Kong illegally on 16 July 2007 and was arrested by police almost 2 years later on 18 May 2009. 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 the village head of his home village over their property dispute, and after his torture claim was rejected, 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 Karachi, Sindh, Pakistan. After leaving school he worked as a plumber and an electrician, got married and raised a family with a son in his house in Kamalpur Musa Tehsil, Attock.

3.  In late 2006 his parents and his wife and son died in a traffic accident, and for which the Applicant suffered deep depression for months. In about mid-2007 some men working for the head of his home village Banaras came to visit him and gave him a sum of money, and for which he signed some documents given to him by those men, but when he asked what the money and documents were about, those men replied that they were for the sale of his house to Banaras which they had earlier agreed after his family’s traffic accident.

4.  The Applicant however denied that he had ever agreed to sell his house to Banaras and made a complaint to the police but which the police refused regarded as some private dispute between him and the village head and refused to take any action.

5.  Soon thereafter Banaras sent his men to the Applicant’s house to demand him to vacate the house and to take possession thereof for Banaras, and when the Applicant refused, those men then made threats against him, and after one night when they came to his house and fired gun shots from outside, the Applicant became fearful for his life and used the money from Banaras to made arrangements to leave the country, and so in July 2007 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 19 January 2018 with legal representation from the Duty Lawyer Service (“DLS”) but failed to complete his screening interview before an immigration officer due to alleged medical reasons.

6.  By a Notice of Decision dated 28 March 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than 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”).

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 Banaras and his men 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 them to seriously harm or kill him other than to force him to leave his house and that having since taken possession thereof after the Applicant left the country in 2007 that there is no reason for Banaras to have any more adverse interest in him, that in any event it was a private property dispute between the 2 of them only 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 areas of the country away from his home district in large cities such as Islamabad where it would be difficult if not impossible for Banaras to locate him.

8.  On 13 April 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 20 January 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 13 March 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of a property dispute with the village head Banaras but found no evidence of any threats or risk of him being harmed or killed by Banaras or his men given the fact that the Applicant had already sold and passed the legal title of his house to Banaras and then kept and used the money given to him that there is no reason or intention for Banaras to do anything against the Applicant, nor is there any evidence or indication that Banaras had made any threats against the Applicant or any intention to do so prior to the Applicant’s departure of the country, and that in any event it is not accepted that Banaras would still have any adverse interest in the Applicant all these years since he left the country more than 13 years ago that the Board concluded that the Applicant had failed to establish that he will face any real risk of harm from Banaras or anyone upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 2 June 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1)  That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Board failed to give the Applicant sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim;

(4)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim that the state would 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;

(5)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country 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 which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(6)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(7)  That the Adjudicator failed to attain high standards of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of Public Law;

(8)  That the Adjudicator failed to take into account the Applicant was tortured at the behest of and with full collusion of the police and state law enforcement agencies as well as politicians before reaching its decision;

(9)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational; and

(10)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated that resulted ibn its groundless speculation that it is for the Applicant to return to his home country.

11.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or which source of news relied on by the board were not officially recognized or were hearsay or outdated, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case or what evidence is there to suggest that the Applicant has ever been tortured by law enforcement agencies or politicians when on the factual basis of even his own case that it was a private property dispute between him and the village head of his home village only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

12.  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.

13.  In the Applicant’s case, the Board rejected his claim on its finding of no credible evidence of any risk of harm that he would face upon his return to his home country for the thorough and detailed analysis and reasoning set out in paragraphs 66 – 119 of its decision with the benefit of hearing him in his oral evidence and his 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 finding of the Board.

14.  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 if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  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.

16.  For 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