KHALIQ ABDUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 793/2018

[2020] HKCFI 2210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 793 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 28-year-old national of Pakistan who entered Hong Kong illegally on 7 August 2013 and was arrested by police on the same day.  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 former girlfriend’s family who opposed their relationship.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Chechian, Tehsil, District Mirpur, Azad Kashmir, Pakistan.  In 2010 he and his family moved to reside in Afzalpur, Tehsil in the same District Mirpur where he met and courted his former girlfriend who lived next door.

3.  In 2012 they decided to get married, and so the Applicant asked his mother to propose marriage to his girlfriend’s family, but due to their different caste and social status, her parents rejected his marriage proposal and warned him to end the relationship.

4.  Thereafter every time the Applicant ran into his girlfriend’s brothers on the street, they would insult and humiliate him and threatened to kill him if he dared to see their sister again, and on one occasion they slapped and punched him until they were intervened by some passers-by.

5.  As a result of the persistent threats from his former girlfriend’s family, the Applicant left Pakistan on 4 May 2013 for China where he stayed for less than a week before returning to Pakistan, but one day in June 2013 his former girlfriend’s father and brothers came to his home and dragged him out into the yard where they beat him and threatened to shoot him with their pistols until some neighbours intervened, and before they left they warned the Applicant that next time they would just shoot him.       

6.  After the incident the Applicant became fearful for his life, and so on 3 August 2013 he departed for China again, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 9 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  While released on recognizance pending determination of his claim, the Applicant in 2015 married a Pakistani woman who is a Hong Kong resident and subsequently gave birth to their daughter, and that his wife has made an application on his behalf for a dependent visa in Hong Kong which is under processed by the Immigration Department.     

8.  By a Notice of Decision dated 14 February 2017 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 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”).

9.  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 his former girlfriend’s family 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 on their part to seriously harm the Applicant other than to keep him away from his former girlfriend, that it was a private and personal dispute 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 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 young man to move to other part of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for his former girlfriend’s family to locate him.

10.  On 27 February 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 15 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 2 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found his problem with his former girlfriend’s family a private dispute invoking no convention reason, that the Applicant has now married with a family and there is therefore no reason for his former girlfriend’s family to continue to have any further interest in him, and that in any event with that risk confined to his local area in Pakistan that the Applicant has many viable alternatives to relocate to other districts such as Karachi where he had stayed before without incidents and where he can safely re-establish his life without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.  

12.  On 7 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he has married in Hong Kong with a family of two children but without putting forward any proper or valid ground for his intended challenge.  Nor did he request any oral hearing for his application.  As such 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 for his intended challenge.

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 fact is that it has been established by both the Director and the Board in their respective decision 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 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.     

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, 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