MEHMOOD ADIL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 84/2018

[2020] HKCFI 730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 84 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 36-year-old national of Pakistan who entered Hong Kong illegally on 21 May 2013 and was arrested by police on the following day on 22 May 2013.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his father’s cousin over a land dispute and/or by the family of his wife whom he married in Hong Kong against their wishes.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Awanabad, Tehsil Hazro, District Attock, Punjab, Pakistan.  After leaving school he worked as a driver and continued to live with his parents in the farmland which his father inherited from his grandfather, but which was coveted by his father’s cousin Mehboob who frequently raised issues over the distribution of the land as he was one of the beneficiaries but was unhappy about his distributed share,which had led to constant conflicts with the Applicant and his family and had sometimes turned violent when the Applicant was attacked by Mehboob and his men with the butts of their rifles and with death threats, but of which the local police refused to take any action due to the fact that Mehboob was a wealthy and influential man in the village and had political connections.

3.  By 2013 the Applicant felt he could no longer tolerate the constant threats and harassments from Mehboob and his men that he decided that it was no longer safe for him to remain in Pakistan, and so he departed on 8 May 2013 for China, and from there he later sneaked into Hong Kong, and upon his arrest he raised his torture claim which was later taken as a non-refoulement claim, for which he completed a Non-refoulement Claim Form on 17September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.  Whilst being released on recognizance pending determination of his claim, the Applicant met a Pakistani woman in Hong Kong whom he subsequently married on 28 August2015 in accordance with his local rituals and ceremony, but which marriage was opposed byhis wife’s family in Pakistan who had threatened to kill him should he return to Pakistan, of which the Applicant also included as a basis for his claim for non-refoulement protection.

5.  By a Notice of Decision dated 19 January 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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 the Hong Kong Bill of Rights (“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”).

6.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Mehboob to the Applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that there was no real intention in Mehboob to seriously harm or kill him which he could have done during all those years in Pakistan, that there is no reliable evidence thatthe family of the Applicant’s wife had ever made any threats against him, that in the absenceof any official involvement in either threats that state or police protection would be availableto 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 199 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 work experience to move to other part of Pakistan away from his home district in large cities such as Karachi, Rawalpindi, or Islamabad where it would be difficult if not impossible for Mehboob or the family of his wife to locate him.

7.  By a Notice of Further Decision dated 28 December 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicablegrounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.  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, the notice of which was filed on 1 February 2016, and for which he attended an oral hearing on 17 January 2017 before the Board but he declined to give any evidence after confirming his case as set out in the hearing bundle.  On 12 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found no reliable evidence to suggest any real risk of harmfrom either Mehboob or the family of the Applicant’s wife, that even if such risks were real they did not attain the minimum level of severity under any of the applicable risks due to the low frequency or duration or severity of past ill-treatments from them, and that state protection was available that the Board did not accept that there is any real chance that the Applicant will be harmed should he return to Pakistan that his claim failed on all applicable grounds.

10.  On 17 January 2018 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 his Form, and in his supporting affirmation of the same date he merely stated that their decisions in rejecting his non-refoulement claim were incorrect as they failed to consider the real situation in Pakistan before reaching their decision.

11.  This is however just a broad and vague assertion of the Applicant without any particulars or specifics or elaborations as to how it applied to his case or how the Director or the Board had erred in the decision, and given the fact that even on his own case that his disputes with Mehboob and the family of his wife are of private personal or family nature without any state or official involvement, I fail to see how that ground or complaint can be arguable for his intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, 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.  Furthermore, the fact 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.

14.  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.

15.  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