FARID GHULAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 279/2019

[2022] HKCFI 310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 279 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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of Pakistan who entered Hong Kong illegally on 23 April 2014 and was arrested by police on 24 April 2014.  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 friend over some financial investment dispute between them. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Malla Kalan, Attock, Pakistan.  After leaving school he ran his own garment business in Faisalabad.

3.  His business was successful that in 2010 he was able to make a fortune that he closed it down and returned to his home district, where he came to know a wealthy businessman Yusuf who was running a successful investment scheme that the Applicant invested his money in the scheme, and also introduced it to his friend Rizwan who was a local property dealer, and as a result Rizwan also invested money in the Yusuf scheme.

4.  However, one day in 2013 Yusuf had suddenly disappeared with all the money and could not be found, and as a result his customers including the Applicant and Rizwan lost all their investments, and for which Rizwan blamed the Applicant and threatened to kill him unless he was to compensate him for his loss, and fearing for his life, the Applicant in April 2014 departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 May 2018 and attended screening interview before the Immigration Department with legal representation.     

5.  By a Notice of Decision dated 8 June 2018 the Director of Immigration (“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”).

6.  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 Rizwan upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from him, that it was a private monetary 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 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 abilities 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 Rizwan to locate him.

7.  On 22 June 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 27 November 2018 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 25 January 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board accepted the Applicant’s claim of dispute with Rizwan over their failed investment but found no evidence of any real intention of Rizwan to harm or kill him over what was essentially a private monetary dispute between them without any official involvement that state/police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to safely move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 29 January 2019, the Applicant filed his Form 86 for leave to apply for judicial review of the decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he merely attached a copy of the decision without putting forth any proper 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 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.

10.  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.

11.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions 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.      

12.  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.

13.  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