HUSSAIN MUSTANSAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 846/2018

[2020] HKCFI 2577

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 846 of 2018

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of Pakistan who entered Hong Kong illegally on 3 March 2015 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 uncle due to family disputes including over a piece of land in their home district. He was subsequently released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Rawalpindi, Pakistan. After leaving school he worked as a farmer in his family’s farmland in their home district.

3.  In 2011 his uncle Chaudhry, the husband of his father’s younger sister, started to raise issue over a piece of land in Gujarkhan which was transferred by his wife to the Applicant’s father in or around 2000 prior to her death, and demanded that the land be returned to him which led to serious disputes between the two families and involved the police when the Applicant and other members of the family had been detained for investigation.

4.  Upon his subsequent release, and as the Applicant continued to receive threats from his uncle who was influential in their home district with political connections, his father advised him to leave Pakistan to save his life, and so in January 2015 he departed for China, 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 17 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  Whilst being released on recognizance pending the determination of his claim, the Applicant was arrested by police on 6 July 2016 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 22 months. 

6.  By a Notice of Decision dated 13 September 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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 his uncle upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from him, that his problems with his uncle were private family disputes without any official involvement that state 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 205 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 area away from his home district in large cities such as Karachi where it would be difficult if not impossible for his uncle to locate him.   

8.  On 25 September 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 22 February 2018 before the Board during which he however declined to give any evidence or to answer questions from the Adjudicator for the Board despite his invitation and advice for him to do so to establish his claim. On 14 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found such serious inconsistencies and discrepancies in the Applicant’s information and material earlier provided to the Director but which the Applicant declined to explain or clarify during his appeal hearing before the Board that it was not satisfied that he has established his claim of threats from his uncle or his claimed fear of harm from him that it does not accept that he would face any real risk of harm from his uncle or anyone upon his return to Pakistan that it concluded that his claim for non-refoulement protection failed on all applicable grounds. 

10.  On 15 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his written submissions dated 20 May 2020, he put forward the following grounds for his intended challenge:

(1)  Lack of legal representation in his appeal before the Board which led to his appeal being decided in an unfair and unreasonable manner;

(2)  That his BOR2 and BOR3 risks were not considered properly by the Board while his persecution risk was also not considered thoroughly and only briefly by the Adjudicator;

(3)  That the Board failed to take into account that no organization would give or keep or provide the proof of torture to him in support of his claim as it would never be visible in public in Pakistan;

(4)  That the Board failed to recognize objectively that the Applicant would not have left his home country if he was not at risk of torture; and

(5)  That the Board’s decision is Wednesbury unreasonable and unfair in the public law sense.   

11.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

12.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was given the opportunity to testify and make representation in his appeal hearing before the Board or to answer questions put to him by the Adjudicator with the assistance of an interpreter but which he refused without any valid reason or explanation. In the premises I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

13.  As for the rest of his complaints under (2) – (5) of his proposed grounds, they all appear to me just his bare and vague assertions without details or particulars or elaborations as to how they apply to his case. 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 of them reasonably arguable for his intended challenge.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where 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 role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

15.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 48 – 56 of its decision upon the Applicant’s failure in his appeal hearing to explain or clarify the many inconsistencies and discrepancies in his information previously provided to the Director despite being invited to do so by the Board, 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.

16.  Furthermore, the fact is that it has been established by the Director in his 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.               

17.  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.

18.  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